EXHIBIT 99.1
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TERM LOAN AGREEMENT
DATED AS OF
JULY 2, 2008
AMONG
XXXXX XXXX LASALLE FINANCE B.V.,
THE GUARANTORS PARTY HERETO,
THE BANKS PARTY HERETO,
BANK OF MONTREAL,
as Administrative Agent
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BMO CAPITAL MARKETS
and
BANK OF AMERICA N.A.,
as Co-Lead Arrangers
and
Joint Book Runners
and
U.S. BANK NATIONAL ASSOCIATION,
THE ROYAL BANK OF SCOTLAND PLC
and
BARCLAYS BANK PLC,
as Co-Documentation Agents
TABLE OF CONTENTS
(This Table of Contents is not part of the Agreement)
SECTION HEADING PAGE
Section 1. The Term Loan. . . . . . . . . . . . . . . . . . 1
Section 1.1. Term Loan. . . . . . . . . . . . . . . . . . . . 1
Section 1.2. Applicable Interest Rates. . . . . . . . . . . . 1
Section 1.3. Minimum Borrowing Amounts; Maximum
Eurodollar Loans . . . . . . . . . . . . . . . . 3
Section 1.4. Manner of Borrowing Loans and
Designating Applicable Interest Rates. . . . . . 3
Section 1.5. Interest Periods . . . . . . . . . . . . . . . . 4
Section 1.6. Maturity of Loans. . . . . . . . . . . . . . . . 5
Section 1.7. Prepayments. . . . . . . . . . . . . . . . . . . 6
Section 1.8. Default Rate.. . . . . . . . . . . . . . . . . . 6
Section 1.9. Noteless Agreement; Evidence of Indebtedness . . 6
Section 1.10. Funding Indemnity. . . . . . . . . . . . . . . . 7
Section 1.11. Commitment Termination . . . . . . . . . . . . . 7
Section 1.12. Substitution of Banks. . . . . . . . . . . . . . 7
Section 1.13. Increase in Term Loans . . . . . . . . . . . . . 8
Section 2. Fees . . . . . . . . . . . . . . . . . . . . . . 8
Section 2.1. Administrative Agent Fees. . . . . . . . . . . . 8
Section 3. Place and Application of Payments. . . . . . . . 9
Section 3.1. Place and Application of Payments. . . . . . . . 9
Section 4. Definitions; Interpretation. . . . . . . . . . . 9
Section 4.1. Definitions. . . . . . . . . . . . . . . . . . . 9
Section 4.2. Interpretation . . . . . . . . . . . . . . . . . 18
Section 4.3. Change in Accounting Principles. . . . . . . . . 18
Section 5. Representations and Warranties . . . . . . . . . 19
Section 5.1. Corporate Organization and Authority . . . . . . 19
Section 5.2. Subsidiaries . . . . . . . . . . . . . . . . . . 19
Section 5.3. Corporate Authority and Validity of
Obligations. . . . . . . . . . . . . . . . . . . 19
Section 5.4. Financial Statements . . . . . . . . . . . . . . 20
Section 5.5. No Litigation; No Labor Controversies. . . . . . 20
Section 5.6. Taxes. . . . . . . . . . . . . . . . . . . . . . 20
Section 5.7. Approvals. . . . . . . . . . . . . . . . . . . . 20
Section 5.8. ERISA. . . . . . . . . . . . . . . . . . . . . . 21
Section 5.9. Government Regulation. . . . . . . . . . . . . . 21
Section 5.10. Margin Stock . . . . . . . . . . . . . . . . . . 21
Section 5.11. Licenses and Authorizations; Compliance with
Environmental and Health Laws. . . . . . . . . . 21
Section 5.12. Ownership of Property; Liens . . . . . . . . . . 21
Section 5.13. No Burdensome Restrictions; Compliance
with Agreements. . . . . . . . . . . . . . . . . 22
Section 5.14. Accuracy of Information. . . . . . . . . . . . . 22
Section 6. Conditions Precedent . . . . . . . . . . . . . . 22
Section 6.1. Initial Credit Event . . . . . . . . . . . . . . 22
Section 6.2. All Credit Events. . . . . . . . . . . . . . . . 23
Section 7. Covenants. . . . . . . . . . . . . . . . . . . . 23
Section 7.1. Corporate Existence; Subsidiaries. . . . . . . . 23
Section 7.2. Maintenance. . . . . . . . . . . . . . . . . . . 24
Section 7.3. Taxes. . . . . . . . . . . . . . . . . . . . . . 24
Section 7.4. ERISA. . . . . . . . . . . . . . . . . . . . . . 24
Section 7.5. Insurance. . . . . . . . . . . . . . . . . . . . 24
Section 7.6. Financial Reports and Other Information. . . . . 24
i
SECTION HEADING PAGE
Section 7.7. Bank Inspection Rights . . . . . . . . . . . . . 26
Section 7.8. Conduct of Business. . . . . . . . . . . . . . . 26
Section 7.9. Liens. . . . . . . . . . . . . . . . . . . . . . 26
Section 7.10. Use of Proceeds; Regulation U. . . . . . . . . . 27
Section 7.11. Sales and Leasebacks . . . . . . . . . . . . . . 27
Section 7.12. Mergers, Consolidations and Sales of Assets. . . 27
Section 7.13. Use of Property and Facilities;
Environmental and Health and Safety Laws . . . . 29
Section 7.14. Investments, Acquisitions, Loans, Advances
and Guaranties . . . . . . . . . . . . . . . . . 29
Section 7.15. Consolidated Net Worth . . . . . . . . . . . . . 31
Section 7.16. Funded Debt to Adjusted EBITDA . . . . . . . . . 31
Section 7.17. Interest Coverage Ratio. . . . . . . . . . . . . 31
Section 7.18. Dividends and Other Shareholder Distributions. . 31
Section 7.19. Indebtedness . . . . . . . . . . . . . . . . . . 31
Section 7.20. Transactions with Affiliates . . . . . . . . . . 32
Section 7.21. Compliance with Laws . . . . . . . . . . . . . . 32
Section 7.22. Additional Guarantors. . . . . . . . . . . . . . 33
Section 8. Events of Default and Remedies . . . . . . . . . 33
Section 8.1. Events of Default. . . . . . . . . . . . . . . . 33
Section 8.2. Non-Bankruptcy Defaults. . . . . . . . . . . . . 35
Section 8.3. Bankruptcy Defaults. . . . . . . . . . . . . . . 35
Section 8.4. Notice of Default. . . . . . . . . . . . . . . . 35
Section 8.5. Expenses . . . . . . . . . . . . . . . . . . . . 35
Section 9. Change in Circumstances. . . . . . . . . . . . . 35
Section 9.1. Change of Law. . . . . . . . . . . . . . . . . . 35
Section 9.2. Unavailability of Deposits or Inability
to Ascertain, or Inadequacy of, LIBOR. . . . . . 36
Section 9.3. Increased Cost and Reduced Return. . . . . . . . 36
Section 9.4. Lending Offices. . . . . . . . . . . . . . . . . 37
Section 9.5. Discretion of Bank as to Manner of Funding . . . 37
Section 10. The Administrative Agent . . . . . . . . . . . . 37
Section 10.1. Appointment and Authorization of
Administrative Agent . . . . . . . . . . . . . . 37
Section 10.2. Administrative Agent and its Affiliates. . . . . 38
Section 10.3. Action by Administrative Agent . . . . . . . . . 38
Section 10.4. Consultation with Experts. . . . . . . . . . . . 38
Section 10.5. Liability of Administrative Agent;
Credit Decision. . . . . . . . . . . . . . . . . 38
Section 10.6. Indemnity. . . . . . . . . . . . . . . . . . . . 39
Section 10.7. Resignation of Administrative Agent
and Successor Agent. . . . . . . . . . . . . . . 39
Section 10.8. Designation of Additional Agents . . . . . . . . 40
Section 11. The Guarantees . . . . . . . . . . . . . . . . . 40
Section 11.1. The Guarantees . . . . . . . . . . . . . . . . . 40
Section 11.2. Guarantee Unconditional. . . . . . . . . . . . . 40
Section 11.3. Discharge Only Upon Payment in Full;
Reinstatement in Certain Circumstances . . . . . 41
Section 11.4. Waivers. . . . . . . . . . . . . . . . . . . . . 41
Section 11.5. Limit on Recovery. . . . . . . . . . . . . . . . 41
Section 11.6. Stay of Acceleration . . . . . . . . . . . . . . 42
Section 11.7. Benefit to Guarantors. . . . . . . . . . . . . . 42
Section 11.8. Guarantor Covenants. . . . . . . . . . . . . . . 42
ii
SECTION HEADING PAGE
Section 12. Miscellaneous. . . . . . . . . . . . . . . . . . 42
Section 12.1. Payments Free of Withholding Taxes . . . . . . . 42
Section 12.2. No Waiver of Rights. . . . . . . . . . . . . . . 43
Section 12.3. Non-Business Day . . . . . . . . . . . . . . . . 43
Section 12.4. Documentary Taxes. . . . . . . . . . . . . . . . 43
Section 12.5. Survival of Representations. . . . . . . . . . . 43
Section 12.6. Survival of Indemnities. . . . . . . . . . . . . 43
Section 12.7. Sharing of Set-Off . . . . . . . . . . . . . . . 43
Section 12.8. Notices. . . . . . . . . . . . . . . . . . . . . 43
Section 12.9. Counterparts . . . . . . . . . . . . . . . . . . 44
Section 12.10. Successors and Assigns . . . . . . . . . . . . . 44
Section 12.11. Participants . . . . . . . . . . . . . . . . . . 45
Section 12.12. Assignments. . . . . . . . . . . . . . . . . . . 45
Section 12.13. Amendments . . . . . . . . . . . . . . . . . . . 47
Section 12.14. Headings . . . . . . . . . . . . . . . . . . . . 47
Section 12.15. Legal Fees, Other Costs and Indemnification. . . 47
Section 12.16. Set Off. . . . . . . . . . . . . . . . . . . . . 47
Section 12.17. Currency . . . . . . . . . . . . . . . . . . . . 48
Section 12.18. Entire Agreement . . . . . . . . . . . . . . . . 48
Section 12.19. Governing Law. . . . . . . . . . . . . . . . . . 48
Section 12.20. Submission to Jurisdiction; Waiver
of Jury Trial. . . . . . . . . . . . . . . . . . 48
Section 12.21. Limitation of Liability. . . . . . . . . . . . . 49
Section 12.22. Confidentiality. . . . . . . . . . . . . . . . . 49
Section 12.23. Severability of Provisions . . . . . . . . . . . 49
Section 12.24. Excess Interest. . . . . . . . . . . . . . . . . 49
Section 12.25. Construction . . . . . . . . . . . . . . . . . . 50
Section 12.26. Bank's Obligations Several . . . . . . . . . . . 50
Section 12.27. USA Patriot Act. . . . . . . . . . . . . . . . . 50
Signature . . . . . . . . . . . . . . . . . . . . . . . . 1
EXHIBITS
A - Form of Note
B - Form of Compliance Certificate
C - Form of Subsidiary Guarantee Agreement
D - Assignment and Acceptance
E - Term Loan Increase Request
SCHEDULE 1 Commitments
SCHEDULE 5.2 Guarantors
SCHEDULE 7.14 Existing Investments
iii
TERM LOAN AGREEMENT
This Term Loan Agreement, dated as of July 2, 2008, is among Xxxxx
Lang LaSalle Finance B.V., a private company with limited liability
organized under the laws of The Netherlands (the "Borrower"), the
Guarantors (as hereinafter defined) party hereto, the lenders from time to
time party hereto (each a "Bank" and, collectively, the "Banks") and Bank
of Montreal, as Administrative Agent.
PRELIMINARY STATEMENT
The Borrower has requested, and the Banks have agreed to extend,
certain credit facilities on the terms and conditions of this Agreement.
Now, Therefore, in consideration of the mutual agreements contained
herein, and the other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby
agree as follows:
SECTION 1. THE TERM LOAN.
SECTION 1.1. TERM LOAN. Subject to the terms and conditions hereof,
each Bank, by its acceptance hereof, severally agrees to make a term loan
(individually a "Loan" and collectively for all the Lenders, the "Loans")
in U.S. Dollars to the Borrower up to the amount of such Bank's Commitment.
The Loans shall be advanced in a single Borrowing on the Effective Date and
shall be made ratably by the Banks in proportion to their respective
Percentages, at which time the Commitments shall expire. As provided in
Section 1.4(a) hereof, the Borrower may elect that each Borrowing of Loans
be either Domestic Rate Loans or Eurodollar Loans. No amount repaid or
prepaid on any Loan may be borrowed again.
SECTION 1.2. APPLICABLE INTEREST RATES.
(a) DOMESTIC RATE LOANS. Each Domestic Rate Loan made or
maintained by a Bank shall bear interest during each Interest Period it is
outstanding (computed on the basis of a year of 365 or 366 days, as
applicable, and actual days elapsed) on the unpaid principal amount thereof
from the date such Loan is advanced, continued or created by conversion
from a Eurodollar Loan until maturity (whether by acceleration or
otherwise) at a rate per annum equal to the sum of the Applicable Margin
PLUS the Domestic Rate from time to time in effect, payable on the last day
of its Interest Period and at maturity (whether by acceleration or
otherwise).
"Domestic Rate" means for any day the greater of:
(i) the rate of interest announced or otherwise established
by the Administrative Agent from time to time as its prime commercial
rate, or equivalent for U.S. Dollar loans to borrowers located in the
United States, as in effect on such day, with any change in the
Domestic Rate resulting from a change in said prime commercial rate
to be effective as of the date of the relevant change in said prime
commercial rate (it being acknowledged and agreed that such rate may
not be the Administrative Agent's best or lowest rate); and
(ii) the sum of (x) the rate determined by the Administrative
Agent to be the average of the rates per annum (rounded upwards, if
necessary, to the nearest one hundred-thousandth of a percentage
point) at approximately 10:00 a.m. (Chicago time) (or as soon
thereafter as is practicable) on such day (or, if such day is not a
Business Day, on the immediately preceding Business Day) by two or
more Federal Funds brokers selected by the Administrative Agent for
sale to the Administrative Agent at face value of overnight Federal
Funds in an amount comparable to the principal amount owed to the
Banks for which such rate is being determined, PLUS (y) 1/2 of 1%
(0.50%).
1
(b) EURODOLLAR LOANS. Each Eurodollar Loan made or maintained by a
Bank shall bear interest during each Interest Period it is outstanding
(computed on the basis of a year of 360 days and actual days elapsed) on
the unpaid principal amount thereof from the date such Loan is advanced,
continued, or created by conversion from a Domestic Rate Loan until
maturity (whether by acceleration or otherwise) at a rate per annum equal
to the sum of the Applicable Margin PLUS the Adjusted LIBOR applicable for
such Interest Period, payable on the last day of the Interest Period and at
maturity (whether by acceleration or otherwise), and, if the applicable
Interest Period is longer than three months, on each day occurring every
three months after the commencement of such Interest Period.
"Adjusted LIBOR" means, for any Borrowing of Eurodollar Loans, a rate
per annum determined in accordance with the following formula:
Adjusted LIBOR = LIBOR
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1 - Eurodollar Reserve Percentage
"LIBOR" means, for an Interest Period for a Borrowing of Eurodollar
Loans, (a) the LIBOR Index Rate for such Interest Period, if such rate is
available, and (b) if the LIBOR Index Rate cannot be determined, the
average rate of interest per annum (rounded upwards, if necessary, to the
nearest one hundred-thousandth of a percentage point) at which deposits in
U.S. Dollars in immediately available funds are offered to the
Administrative Agent at 11:00 a.m. (London, England time) two (2) Business
Days before the beginning of such Interest Period by major banks in the
interbank eurodollar market for delivery on the first day of and for a
period equal to such Interest Period in an amount equal or comparable to
the principal amount of the Eurodollar Loan scheduled to be made by the
Administrative Agent as part of such Borrowing.
"LIBOR Index Rate" means, for any Interest Period, the rate per annum
(rounded upwards, if necessary, to the next higher one hundred-thousandth
of a percentage point) for deposits in U.S. Dollars for a period equal to
such Interest Period, which appears on the LIBOR01 Page as of 11:00 a.m.
(London, England time) on the day two (2) Business Days before the
commencement of such Interest Period.
"LIBOR01 Page" means the display designated as "Reuters Screen
LIBOR01 Page" (or such other page as may replace the LIBOR01 Page on that
service or such other service as may be nominated by the British Bankers'
Association as the information vendor for the purpose of displaying British
Bankers' Association Interest Settlement Rates for U.S. Dollar deposits).
"Eurodollar Reserve Percentage" means, for any Borrowing of
Eurodollar Loans, the daily average for the applicable Interest Period of
the maximum rate, expressed as a decimal, at which reserves (including,
without limitation, any supplemental, marginal and emergency reserves) are
imposed during such Interest Period by the Board of Governors of the
Federal Reserve System (or any successor) on "eurocurrency liabilities", as
defined in such Board's Regulation D (or in respect of any other category
of liabilities that includes deposits by reference to which the interest
rate on Eurodollar Loans is determined or any category of extensions of
credit or other assets that include loans by non-United States offices of
any Bank to United States residents), subject to any amendments of such
reserve requirement by such Board or its successor, taking into account any
transitional adjustments thereto. For purposes of this definition, the
Eurodollar Loans shall be deemed to be "eurocurrency liabilities" as
defined in Regulation D without benefit or credit for any prorations,
exemptions or offsets under Regulation D.
2
(c) RATE DETERMINATIONS. The Administrative Agent shall determine
each interest rate applicable to the Loans hereunder, and a reasonable
determination thereof by the Administrative Agent shall be conclusive and
binding except in the case of manifest error or willful misconduct.
SECTION 1.3. MINIMUM BORROWING AMOUNTS; MAXIMUM EURODOLLAR LOANS.
Each Borrowing of Domestic Rate Loans shall be in an amount not less than
$1,000,000 and in integral multiples of $100,000. Each Borrowing of
Eurodollar Loans shall be in an amount equal to $5,000,000 or such greater
amount which is an integral multiple of $100,000. Without the
Administrative Agent's consent, there shall not be more than eight (8)
Borrowings of Eurodollar Loans outstanding hereunder at any one time.
SECTION 1.4. MANNER OF BORROWING LOANS AND DESIGNATING APPLICABLE
INTEREST RATES.
(a) NOTICE TO THE ADMINISTRATIVE AGENT. The Borrower shall give
notice to the Administrative Agent by no later than 12:00 noon (Chicago
time): (i) at least 3 Business Days before the date on which the Borrower
requests the Banks to advance a Borrowing of Eurodollar Loans and (ii) on
the date the Borrower requests the Banks to advance a Borrowing of Domestic
Rate Loans. The Loans included in each Borrowing shall bear interest
initially at the type of rate specified in such notice of a new Borrowing.
Thereafter, subject to the terms and conditions hereof, the Borrower may
from time to time elect to change or continue the type of interest rate
borne by each Borrowing or, subject to the minimum amount requirement for
each outstanding Borrowing set forth in Section 1.3 hereof, a portion
thereof, as follows: (i) if such Borrowing is of Eurodollar Loans, on the
last day of the Interest Period applicable thereto, the Borrower may
continue part or all of such Borrowing as Eurodollar Loans or convert part
or all of such Borrowing into Domestic Rate Loans or (ii) if such Borrowing
is of Domestic Rate Loans, on any Business Day, the Borrower may convert
all or part of such Borrowing into Eurodollar Loans for an Interest Period
or Interest Periods specified by the Borrower. The Borrower shall give all
such notices requesting the advance, continuation or conversion of a
Borrowing to the Administrative Agent by telephone or telecopy (which
notice shall be irrevocable once given and, if by telephone, shall be
promptly confirmed in writing). Notices of the continuation of a Borrowing
of Eurodollar Loans for an additional Interest Period or of the conversion
of part or all of a Borrowing of Domestic Rate Loans into Eurodollar Loans
must be given by no later than 12:00 noon (Chicago time) at least three
(3) Business Days before the date of the requested continuation or
conversion. All such notices concerning the advance, continuation or
conversion of a Borrowing shall specify the date of the requested advance,
continuation or conversion of a Borrowing (which shall be a Business Day),
the amount of the requested Borrowing to be advanced, continued or
converted, the type of Loans to comprise such new, continued or converted
Borrowing and, if such Borrowing is to be comprised of Eurodollar Loans,
the Interest Period applicable thereto. The Borrower agrees that the
Administrative Agent may rely on any such telephonic or telecopy notice
given by any person the Administrative Agent in good faith believes is an
Authorized Representative without the necessity of independent
investigation, and in the event any such notice by telephone conflicts with
any written confirmation such telephonic notice shall govern if the
Administrative Agent has acted in reliance thereon.
(b) NOTICE TO THE BANKS. The Administrative Agent shall give
prompt telephonic or telecopy notice to each Bank (which notice if by
telephone, shall be promptly confirmed in writing) of any notice from the
Borrower received pursuant to Section 1.4(a) above and, if such notice
requests the Banks to make Eurodollar Loans, the Administrative Agent shall
give notice to the Borrower and each Bank by like means of the interest
rate applicable thereto promptly after the Administrative Agent has made
such determination.
3
(c) BORROWER'S FAILURE TO NOTIFY; AUTOMATIC CONTINUATIONS AND
CONVERSIONS. Any outstanding Borrowing of Domestic Rate Loans shall
automatically be continued for an additional Interest Period on the last
day of its then current Interest Period unless the Borrower has notified
the Administrative Agent within the period required by Section 1.4(a) that
the Borrower intends to convert such Borrowing into a Borrowing of
Eurodollar Loans or such Borrowing is prepaid in accordance with Section
1.7(a). If the Borrower fails to give notice pursuant to Section 1.4(a)
above of the continuation or conversion of any outstanding principal amount
of a Borrowing of Eurodollar Loans before the last day of its then current
Interest Period within the period required by Section 1.4(a) and has not
notified the Administrative Agent within the period required by
Section 1.7(a) that it intends to prepay such Borrowing, such Borrowing
shall automatically be converted into a Borrowing of Domestic Rate Loans,
subject to Section 6.2 hereof.
(d) DISBURSEMENT OF LOANS. Not later than 2:00 p.m. (Chicago time)
on the Effective Date, subject to Section 6 hereof, each Bank shall make
available its Loan comprising part of such Borrowing in funds immediately
available at the principal office of the Administrative Agent in Chicago,
Illinois. The Administrative Agent shall make the proceeds of such new
Borrowing available to the Borrower at the Administrative Agent's principal
office in Chicago, Illinois, in each case in the type of funds received, or
as the Borrower and the Administrative Agent may otherwise agree.
(e) ADMINISTRATIVE AGENT RELIANCE ON BANK FUNDING. Unless the
Administrative Agent shall have been notified by a Bank prior to 1:00 p.m.
(Chicago time) on the Effective Date (which notice shall be effective upon
receipt) that such Bank does not intend to make such payment, the
Administrative Agent may assume that such Bank has made such payment when
due and the Administrative Agent may in reliance upon such assumption (but
shall not be required to) make available to the Borrower the proceeds of
the Loan to be made by such Bank and, if any Bank has not in fact made such
payment to the Administrative Agent, such Bank shall, on demand, pay to the
Administrative Agent the amount made available to the Borrower attributable
to such Bank together with interest thereon in respect of each day during
the period commencing on the date such amount was made available to the
Borrower and ending on (but excluding) the date such Bank pays such amount
to the Administrative Agent at a rate per annum equal to: (i) from the
date the related advance was made by the Administrative Agent to the date
two (2) Business Days after payment by such Bank is due hereunder, the
Federal Funds Rate for each such day and (ii) from the date two (2)
Business Days after the date such payment is due from such Bank to the date
such payment is made by such Bank, the Domestic Rate in effect for each
such day. If such amount is not received from such Bank by the
Administrative Agent immediately upon demand, the Borrower will, on demand,
repay to the Administrative Agent the proceeds of the Loan attributable to
such Bank with interest thereon at a rate per annum equal to the interest
rate applicable to the relevant Loan, but without such payment being
considered a payment or prepayment of a Loan under Section 1.10 hereof so
that the Borrower will have no liability under such Section with respect to
such payment.
SECTION 1.5. INTEREST PERIODS. As provided in Section 1.4(a)
hereof, at the time of each request to advance, continue, or create by
conversion a Borrowing of Eurodollar Loans, the Borrower shall select an
Interest Period applicable to such Loans from among the available options.
The term "Interest Period" means the period commencing on the date a
Borrowing of Loans is advanced, continued, or created by conversion and
ending: (a) in the case of Domestic Rate Loans, on the last day of the
calendar quarter in which such Borrowing is advanced, continued, or created
by conversion (or on the last day of the following quarter if such Loan is
advanced, continued or created by conversion on the last day of a calendar
quarter), and (b) in the case of Eurodollar Loans, 1, 2, 3, 6, or, if
available to all the Banks, 9 or 12 months thereafter; PROVIDED, HOWEVER,
that:
4
(a) any Interest Period for a Borrowing of Loans consisting
of Domestic Rate Loans that otherwise would end after the Maturity
Date shall end on the Maturity Date;
(b) whenever the last day of any Interest Period would
otherwise be a day that is not a Business Day, the last day of such
Interest Period shall be extended to the next succeeding Business
Day, PROVIDED that, if such extension would cause the last day of an
Interest Period for a Borrowing of Eurodollar Loans to occur in the
following calendar month, the last day of such Interest Period shall
be the immediately preceding Business Day;
(c) for purposes of determining an Interest Period for a
Borrowing of Eurodollar Loans, a month means a period starting on one
day in a calendar month and ending on the numerically corresponding
day in the next calendar month; PROVIDED, HOWEVER, that if there is
no numerically corresponding day in the month in which such an
Interest Period is to end or if such an Interest Period begins on the
last Business Day of a calendar month, then such Interest Period
shall end on the last Business Day of the calendar month in which
such Interest Period is to end; and
(d) no Interest Period with respect to any portion of the
Loans shall extend beyond a date on which the Borrower is required to
make a scheduled payment of principal on the Loans unless the sum of
(a) the aggregate principal amount of Loans that are Base Rate Loans
PLUS (b) the aggregate principal amount of Loans that are Eurodollar
Loans with Interest Periods expiring on or before such date equals or
exceeds the principal amount to be paid on the Loans on such payment
date.
SECTION 1.6. MATURITY OF LOANS. The Borrower shall make principal
payments on the Loans in installments on the last day of each March, June,
September, and December in each year, commencing with the calendar quarter
ending December 31, 2008, with the amount of each such principal
installment to equal the amount set forth in Column B below shown opposite
of the relevant due date as set forth in Column A below:
COLUMN A COLUMN B
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SCHEDULED PRINCIPAL
PAYMENT DATE PAYMENT ON LOANS
12/31/08, 03/31/09,
06/30/09, 09/30/09,
12/31/09, 03/31/10,
06/30/10, and 09/30/10 $3,750,000
12/31/10, 03/31/11,
06/30/11, 09/30/11,
12/31/11, and 03/31/12 $5,625,000
In the event the Borrower increases the aggregate outstanding principal
amount of the Loans pursuant to Section 1.13 hereof, the Borrower shall
make principal payments on such additional Loans in installments on the
last day of each March, June, September and December in each year as agreed
in the relevant Term Loan Increase Request; PROVIDED THAT such installments
shall not result in a shorter weighted average maturity than provided for
in the payment schedule set forth above. It being agreed that a final
payment comprised of all principal and interest not sooner paid on the
Loans shall be due and payable on the Maturity Date, the final maturity
thereof. Subject to the second preceding sentence, each such principal
payment shall be applied to the Banks PRO RATA based upon their
Percentages.
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SECTION 1.7. PREPAYMENTS. The Borrower may prepay without premium
or penalty and in whole or in part (but, if in part, then: (i) if such
Borrowing is of Domestic Rate Loans, in an amount not less than $500,000,
(ii) if such Borrowing is of Eurodollar Loans, in an amount not less than
$1,000,000, and (iii) in each case, in an amount such that the minimum
amount required for a Borrowing pursuant to Section 1.3 hereof remains
outstanding) any Borrowing of Eurodollar Loans at any time upon one
(1) Business Day's prior notice by the Borrower to the Administrative Agent
or, in the case of a Borrowing of Domestic Rate Loans, notice delivered by
the Borrower to the Administrative Agent no later than 12:00 noon (Chicago
time) on the date of prepayment (or, in any case, such shorter period of
time then agreed to by the Administrative Agent), such prepayment to be
made by the payment of the principal amount to be prepaid. Any such
prepayment shall be applied first to the next succeeding four (4) scheduled
amortization payments and second to the remaining scheduled amortization
payments on a PRO RATA basis. The Administrative Agent will promptly
advise each Bank of any such prepayment notice it receives from the
Borrower.
SECTION 1.8. DEFAULT RATE. Notwithstanding anything to the contrary
contained herein, while any Event of Default exists or after acceleration,
the Borrower shall pay interest (after as well as before entry of judgment
thereon to the extent permitted by law) on the principal amount of all
Loans from and including the date provided in this Section 1.8 until paid
at a rate per annum equal to:
(a) for any Domestic Rate Loan, the sum of two percent (2.0%)
PLUS the Domestic Rate from time to time in effect PLUS the
Applicable Margin for Domestic Rate Loans; and
(b) for any Eurodollar Loan, the sum of two percent (2.0%)
PLUS the rate of interest in effect thereon at the time of such
default until the end of the Interest Period applicable thereto and,
thereafter, at a rate per annum equal to the sum of two percent
(2.0%) PLUS the Applicable Margin for Domestic Rate Loans PLUS the
Domestic Rate from time to time in effect;
PROVIDED, HOWEVER, that in the absence of acceleration, any adjustments
pursuant to this Section shall be made at the election of the
Administrative Agent, acting at the request or with the consent of the
Required Banks, with written notice to the Borrower. While any Event of
Default exists or after acceleration, interest shall be paid on demand of
the Administrative Agent at the request or with the consent of the Required
Banks.
SECTION 1.9. NOTELESS AGREEMENT; EVIDENCE OF INDEBTEDNESS.
(a) Each Bank shall maintain in accordance with its usual practice
an account or accounts evidencing the indebtedness of the Borrower to such
Bank resulting from each Loan made by such Bank from time to time,
including the amounts of principal and interest payable and paid to such
Bank from time to time hereunder.
(b) The Administrative Agent shall also maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the type thereof
and the Interest Period with respect thereto, (ii) the amount of any
principal or interest due and payable or to become due and payable from the
Borrower to each Bank hereunder and (c) the amount of any sum received by
the Administrative Agent hereunder from the Borrower and each Bank's share
thereof.
(c) The entries maintained in the accounts maintained pursuant to
paragraphs (a) and (b) above shall be PRIMA FACIE evidence of the existence
and amounts of the Obligations therein recorded; PROVIDED, HOWEVER, that
the failure of the Administrative Agent or any Bank to maintain such
accounts or any error therein shall not in any manner affect the obligation
of the Borrower to repay the Obligations in accordance with their terms.
6
(d) Any Bank may request that its Loans be evidenced by a Note. In
such event, the Borrower shall prepare, execute and deliver to such Bank a
Note payable to the order of such Bank in a form supplied by the
Administrative Agent. Thereafter, the Loans evidenced by such Note and
interest thereon shall at all times (including after any assignment
pursuant to Section 12.12) be represented by such Note payable to the order
of the payee named therein or any assignee pursuant to Section 12.12,
except to the extent that any such Bank or assignee subsequently returns
any such Note for cancellation and requests that such Loans once again be
evidenced as described in subsections (a) and (b) above.
SECTION 1.10. FUNDING INDEMNITY. If any Bank shall incur any loss,
cost or expense (including, without limitation, any loss of profit, and any
loss, cost or expense incurred by reason of the liquidation or
re-employment of deposits or other funds acquired by such Bank to fund or
maintain any Eurodollar Loan or the relending or reinvesting of such
deposits or amounts paid or prepaid to such Bank) as a result of:
(a) any payment, prepayment or conversion of a
Eurodollar Loan on a date other than the last day of its
Interest Period,
(b) any failure (because of a failure to meet the
conditions of Section 6 or otherwise) by the Borrower to borrow
or continue a Eurodollar Loan, or to convert a Domestic Rate
Loan into a Eurodollar Loan, on the date specified in a notice
given pursuant to Section 1.4(a) or established pursuant to
Section 1.4(c) hereof,
(c) any failure by the Borrower to make any payment of
principal on any Eurodollar Loan when due (whether by
acceleration or otherwise), or
(d) any acceleration of the maturity of a Eurodollar
Loan as a result of the occurrence of any Event of Default
hereunder,
then, upon the demand of such Bank, the Borrower shall pay to such Bank
such amount as will reimburse such Bank for such loss, cost or expense. If
any Bank makes such a claim for compensation, it shall provide to the
Borrower, with a copy to the Administrative Agent, a certificate executed
by an officer of such Bank setting forth the amount of such loss, cost or
expense in reasonable detail (including an explanation of the basis for and
the computation of such loss, cost or expense) and the amounts shown on
such certificate if reasonably calculated shall be conclusive absent
manifest error.
SECTION 1.11. COMMITMENT TERMINATION. Immediately upon the
advancing of the Loans on the Effective Date, the Commitments shall
terminate.
SECTION 1.12. SUBSTITUTION OF BANKS. In the event (a) the Borrower
receives a claim from any Bank for compensation under Section 9.3 or 12.1
hereof, (b) the Borrower receives notice from any Bank of any illegality
pursuant to Section 10.1 hereof, (c) any Bank is in default in any material
respect with respect to its obligations under the Credit Documents, or
(d) a Bank fails to consent to an amendment or waiver requested under
Section 12.13 hereof at a time when the Required Banks have approved such
amendment or waiver (any such Bank referred to in clause (a), (b), (c), or
(d) above being hereinafter referred to as an "Affected Bank"), the
Borrower may, in addition to any other rights the Borrower may have
hereunder or under applicable law, require, at its expense, any such
Affected Bank to assign, at par PLUS accrued interest and fees, without
recourse, all of its interest, rights, and obligations hereunder (including
7
all of its Commitment and the Loans and other amounts at any time owing to
it hereunder and the other Credit Documents) to a commercial bank or other
financial institution specified by the Borrower, PROVIDED that (i) such
assignment shall not conflict with or violate any law, rule or regulation
or order of any court or other governmental authority, (ii) the Borrower
shall have received the written consent of the Administrative Agent, which
consent shall not be unreasonably withheld or delayed, to such assignment,
(iii) the Borrower shall have paid to the Affected Bank all monies
(together with amounts due such Affected Bank under Section 1.10 hereof as
if the Loans owing to it were prepaid rather than assigned) other than such
principal owing to it hereunder, and (iv) the assignment is entered into in
accordance with the other requirements of Section 12.12 hereof (provided
any assignment fees and reimbursable expenses due thereunder shall be paid
by the Borrower).
SECTION 1.13. INCREASE IN TERM LOANS. The Borrower may, on any
Business Day prior to the Maturity Date, with the written consent of the
Administrative Agent (which consent shall not be unreasonably withheld or
delayed), increase the aggregate amount of the Loans by delivering a Loan
Increase Request substantially in the form attached hereto as Exhibit E or
in such other form acceptable to the Administrative Agent at least five (5)
Business Days prior to the desired effective date of such increase (the
"Term Loan Increase") identifying an additional Bank (or additional Loan
for existing Bank(s)) and the amount of its Loan (or additional amount of
its Loan(s)); PROVIDED, HOWEVER, that (i) any increase of the aggregate
amount of the Loans to an amount in excess of $1,000,000,000 MINUS (I) the
then existing "Commitments" under the Multicurrency Credit Agreement and
(II) the term loans advanced pursuant to Section 1.15 of the Multicurrency
Credit Agreement, other than Loans hereunder, will require the approval of
the Required Banks, (ii) any increase of the aggregate amount of the Loans
shall be in an amount not less than $5,000,000, (iii) no Default or Event
of Default shall have occurred and be continuing at the time of the request
or the effective date of the Term Loan Increase, and (iv) all
representations and warranties contained in Section 6 hereof shall be true
and correct at the time of such request and on the effective date of such
Term Loan Increase. The effective date of the Term Loan Increase shall be
agreed upon by the Borrower and the Administrative Agent. The Borrower,
Administrative Agent, each Bank increasing its Loan and each new Bank shall
agree in the relevant Term Loan Increase Request as to the amortization
schedule of such additional Loans; PROVIDED that no such schedule shall
have the effect of reducing the amortization payments scheduled to be made
to the Banks that are not increasing their Loans. Upon the effectiveness
thereof, the new Bank(s) (or, if applicable, existing Bank(s)) shall
advance Loans in the amount identified in the Term Loan Increase Request.
It shall be a condition to such effectiveness that if any Eurodollar Loans
are outstanding on the date of such effectiveness, such Eurodollar Loans
shall be deemed to be prepaid on such date and the Borrower shall pay any
amounts owing to the Banks pursuant to Section 1.10 hereof. The Borrower
agrees to pay any reasonable expenses of the Administrative Agent relating
to any Term Loan Increase. Promptly upon the effectiveness of any Term
Loan Increase, the Borrower, if requested by any new Bank, shall execute
and deliver new Notes to each requesting Bank. Notwithstanding anything
herein to the contrary, no Bank shall have any obligation to increase its
Loan and each Bank may at its option, unconditionally and without cause,
decline to increase its Loan.
SECTION 2. FEES.
SECTION 2.1. ADMINISTRATIVE AGENT FEES. The Borrower shall pay to
the Administrative Agent the fees agreed to between the Administrative
Agent and the Parent in writing from time to time.
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SECTION 3. PLACE AND APPLICATION OF PAYMENTS.
SECTION 3.1. PLACE AND APPLICATION OF PAYMENTS. All payments of
principal of and interest on the Loans, and of all other Obligations
payable by the Borrower under this Agreement and the other Loan Documents,
shall be made by the Borrower to the Administrative Agent by no later than
12:00 Noon (Chicago time) on the due date thereof at the office of the
Administrative Agent in Chicago, Illinois (or such other location as the
Administrative Agent may designate to the Borrower), for the benefit of the
Bank or Banks entitled thereto. Any payments received after such time
shall be deemed to have been received by the Administrative Agent on the
next Business Day. All such payments shall be made in U.S. Dollars, in
immediately available funds at the place of payment, in each case without
set-off or counterclaim. The Administrative Agent will promptly thereafter
cause to be distributed like funds relating to the payment of principal or
interest on Loans and like funds relating to the payment of any other
amount payable to any Bank to such Bank, in each case to be applied in
accordance with the terms of this Agreement. If the Administrative Agent
causes amounts to be distributed to the Banks in reliance upon the
assumption that the Borrower will make a scheduled payment and such
scheduled payment is not so made, each Bank shall, on demand, repay to the
Administrative Agent the amount distributed to such Bank together with
interest thereon in respect of each day during the period commencing on the
date such amount was distributed to such Bank and ending on (but excluding)
the date such Bank repays such amount to the Administrative Agent, at a
rate per annum equal to: (i) from the date the distribution was made to
the date two (2) Business Days after payment by such Bank is due hereunder,
the Federal Funds Rate for each such day and (ii) from the date two (2)
Business Days after the date such payment is due from such Bank to the date
such payment is made by such Bank, the Domestic Rate in effect for each
such day.
SECTION 4. DEFINITIONS; INTERPRETATION.
SECTION 4.1. DEFINITIONS. The following terms when used herein have
the following meanings:
"Acquisition" means any transaction, or any series of related
transactions, consummated after the Effective Date, by which the Parent or
any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any firm, corporation or division
thereof, whether through purchase of assets, merger or otherwise,
(ii) directly or indirectly acquires (in one transaction or as the most
recent transaction in a series of transactions) at least a majority (in
number of votes) of the securities of a corporation which have ordinary
voting power for the election of directors (other than securities having
such power only by reason of the happening of a contingency) or at least a
majority of the partnership interests of any partnership or (iii) merges,
consolidates or otherwise combines with another Person (other than a Person
that is a Subsidiary or the Parent) PROVIDED that the Parent or the
Subsidiary is the surviving entity.
"Act" is defined in Section 12.27 hereof.
"Adjusted EBIT" means, for any period, Consolidated Net Income for
such period PLUS all amounts deducted in arriving at such Consolidated Net
Income for such period for (i) Interest Expense, (ii) federal, state and
local income tax expense, (iii) all non-cash contributions or accruals to
or with respect to deferred profit sharing or compensation, and (iv)
Permitted Adjustments; PROVIDED that any amounts added to Consolidated Net
Income pursuant to clause (iii) above for any period shall be deducted from
Consolidated Net Income for the period, if ever, in which such amounts are
paid in cash by the Parent or any of its Subsidiaries.
9
"Adjusted EBITDA" means, for any period, Consolidated Net Income for
such period PLUS all amounts deducted in arriving at such Consolidated Net
Income for such period for (i) Interest Expense, (ii) federal, state and
local income tax expense, (iii) all amounts properly charged for
depreciation of fixed assets and amortization of intangible assets on the
books of the Parent and its Restricted Subsidiaries, (iv) all non-cash
contributions or accruals to or with respect to deferred profit sharing or
compensation, and (v) Permitted Adjustments; PROVIDED that any amounts
added to Consolidated Net Income pursuant to clause (iv) above for any
period shall be deducted from Consolidated Net Income for the period, if
ever, in which such amounts are paid in cash by the Parent or any of its
Subsidiaries.
"Adjusted LIBOR" is defined in Section 1.2(b) hereof.
"Administrative Agent" means Bank of Montreal and any successor
pursuant to Section 10.7 hereof.
"Administrative Questionnaire" means an administrative questionnaire
in a form supplied by the Administrative Agent.
"Affected Bank" is defined in Section 1.12 hereof.
"Affiliate" means, as to any Person, any other Person which directly
or indirectly controls, or is under common control with, or is controlled
by, such Person. As used in this definition, "control" (including, with
their correlative meanings, "controlled by" and "under common control
with") means possession, directly or indirectly, of power to direct or
cause the direction of management or policies of a Person (whether through
ownership of securities or partnership or other ownership interests, by
contract or otherwise), PROVIDED that, in any event for purposes of this
definition: (i) any Person which owns directly or indirectly 5% or more of
the securities having ordinary voting power for the election of directors
or other governing body of a corporation or 5% or more of the partnership
or other ownership interests of any other Person (other than as a limited
partner of such other Person) will be deemed to control such corporation or
other Person; and (ii) each director and executive officer of the Parent or
any Subsidiary shall be deemed an Affiliate of the Parent and each
Subsidiary.
"Applicable Margin" means, on any date for any Domestic Rate Loan and
Eurodollar Loan, the rate per annum set forth below, as in effect on such
date as determined pursuant to the provisions of the definition of Pricing
Date:
EURODOLLAR DOMESTIC
LEVEL LOANS RATE LOANS
Level I 1.25% 0.375%
Level II 1.50% 0.375%
Level III 1.75% 0.40%
Level IV 2.00% 0.50%
Level V 2.25% 0.75%
Level VI 2.75% 1.00%
; PROVIDED that from the Effective Date until the Pricing Date for the
fiscal quarter of the Parent ending December 31, 2008, the Borrower shall
be in Level IV.
"Approved Fund" means any Fund that is administered or managed by (a)
a Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an
entity that administers or manages a Bank.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Bank and an Eligible Assignee (with the consent of any
party whose consent is required by Section 12.12 hereof), and accepted by
the Administrative Agent, in substantially the form of Exhibit D or any
other form approved by the Administrative Agent.
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"Authorized Representative" means those persons shown on the list of
officers provided by the Borrower pursuant to Section 6.1(g) hereof, or on
any updated such list provided by the Parent to the Administrative Agent,
or any further or different officer of the Borrower so named by any
Authorized Representative of the Parent in a written notice to the
Administrative Agent.
"Bank" is defined in the introductory paragraph of this Agreement.
"Borrower" is defined in the introductory paragraph of this
Agreement.
"Borrowing" means the total of Loans of a single type advanced,
continued for an additional Interest Period, or converted from a different
type into such type by the Banks on a single date and for a single Interest
Period. Borrowings of Loans are made and maintained ratably from each of
the Banks according to their Percentages. A Borrowing is "advanced" on the
day Banks advance funds comprising such Borrowing to the Borrower, is
"continued" on the day a new Interest Period for the same type of Loans
commences for such Borrowing, and is "converted" on the day such Borrowing
is changed from one type of Loan to the other, all as requested by the
Borrower pursuant to Section 1.4(a).
"Business Day" means any day (other than a Saturday or Sunday) on
which banks are not authorized or required to close in Chicago, Illinois
and, if the applicable Business Day relates to the advance or continuation
of, or conversion into, or payment of a Eurodollar Loan, on which banks are
dealing in U.S. Dollar deposits in the interbank eurodollar market in
London, England and Nassau, Bahamas.
"Capital Lease" means at any date any lease of Property which, in
accordance with GAAP, would be required to be capitalized on the balance
sheet of the lessee.
"Capitalized Lease Obligations" means, for any Person, the amount of
such Person's liabilities under Capital Leases determined at any date in
accordance with GAAP.
"Cash Interest Expense" means, for any period, the sum of all cash
interest charges of the Parent and its Restricted Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"Change of Control" means at any time:
(i) the Parent ceases to be the ultimate "beneficial
owner" (as defined in Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act")) of at least 99% of the total
voting power of the Voting Stock of the Borrower;
(ii) any Person becomes the beneficial owner of
securities of the Parent representing 30% or more of the then
outstanding Voting Stock of the Parent; or
(iii) during any period of twenty-four consecutive months
beginning after the Effective Date, individuals who at the beginning
of such period constitute the Board of Directors of the Parent (the
"Board"), together with any new director (other than a director
designated by a person who has entered into an agreement with the
Parent to effect a transaction described in clause (ii) of this
Change of Control definition) whose election or nomination for
election was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the
beginning of the period or whose election or nomination for election
was previously so approved, cease for any reason to constitute a
majority of the Board.
11
For purposes of the definition of Change of Control, "Person" shall
have the meaning ascribed to such term in Section 3(a)(9) of the Exchange
Act as supplemented by Section 13(d)(3) of the Exchange Act; PROVIDED,
HOWEVER, that Person shall not include (i) the Parent or any Wholly-Owned
Subsidiary, or (ii) any Person who, as of the Effective Date, was the
beneficial owner of securities of the Parent representing 20% or more of
the combined voting power.
"Code" means the Internal Revenue Code of 1986, as amended.
"Commitment" means, as to any Bank, the obligation of such Bank to
make Loans hereunder in an aggregate principal or face amount at any one
time outstanding not to exceed the amount set forth opposite such Bank's
name under the heading "Commitment" on Schedule 1 attached hereto and made
a part hereof, as the same may be reduced or modified at any time or from
time to time pursuant to the terms hereof.
"Compliance Certificate" means a certificate in the form of Exhibit B
hereto.
"Consolidated Net Income" means, for any period, the net income (or
net loss) of the Parent and its Restricted Subsidiaries for such period
computed on a consolidated basis in accordance with GAAP, but excluding any
extraordinary profits or losses; PROVIDED THAT there shall be included in
such determination for such period all such amounts attributable to any
Person acquired pursuant to an Acquisition to the extent such Person is not
subsequently sold or otherwise disposed of (other than in a transaction
pursuant to which the business of such Person is retained by the Parent or
a Subsidiary of the Parent) during such period for the portion of such
period prior to such Acquisition.
"Consolidated Net Worth" means, as of the date of any determination
thereof, the amount reflected as stockholders' equity upon a consolidated
balance sheet of the Parent and its Restricted Subsidiaries for such date
computed on a consolidated basis in accordance with GAAP.
"Contractual Obligation" means, as to any Person, any provision of
any security issued by such Person or of any agreement, instrument or
undertaking to which such Person is a party or by which it or any of its
Property is bound.
"Controlled Group" means all members of a controlled group of
corporations and all trades and businesses (whether or not incorporated)
under common control that, together with the Parent or any of its
Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Credit Documents" means this Agreement, the Notes and each
Subsidiary Guarantee Agreement delivered to the Administrative Agent
pursuant to Section 7.22 hereof.
"Credit Event" means the advancing of any Loan or the continuation of
or conversion into a Eurodollar Loan.
"Default" means any event or condition the occurrence of which would,
with the passage of time or the giving of notice, or both, constitute an
Event of Default.
"Designated Disbursement Account" means the account of the Borrower
maintained with the Administrative Agent or its Affiliate and designated in
writing to the Administrative Agent as the Borrower's Designated
Disbursement Account (or such other account as the Borrower and the
Administrative Agent may otherwise agree).
"Domestic Rate" is defined in Section 1.2(a) hereof.
"Domestic Rate Loan" means a Loan bearing interest prior to maturity
at a rate specified in Section 1.2(a) hereof.
12
"Effective Date" means the date hereof.
"Eligible Assignee" means (a) a Bank, (b) an Affiliate of a Bank,
(c) an Approved Fund, and (d) any other Person (other than a natural
person) approved by (i) the Administrative Agent, and (ii) unless an Event
of Default has occurred and is continuing, the Parent (each such approval
not to be unreasonably withheld or delayed and if it is delayed for more
than five (5) Business Days it is deemed to be given); PROVIDED that
notwithstanding the foregoing, "Eligible Assignee" shall not include the
Borrower or any Guarantor or any of the Parent's or Affiliates or
Subsidiaries.
"Environmental and Health Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, judgments,
permits and other governmental rules or restrictions relating to human
health, safety (including without limitation occupational safety and health
standards), or the environment or to emissions, discharges or releases of
pollutants, contaminants, hazardous or toxic substances, wastes or any
other controlled or regulated substance into the environment, including
without limitation ambient air, surface water, ground water or land, or
otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants,
contaminants, hazardous or toxic substances, wastes or any other controlled
or regulated substance or the clean-up or other remediation thereof.
"ERISA" is defined in Section 5.8 hereof.
"Eurodollar Loan" means a Loan bearing interest prior to maturity at
the rate specified in Section 1.2(b) hereof.
"Eurodollar Reserve Percentage" is defined in Section 1.2(b) hereof.
"Event of Default" means any of the events or circumstances specified
in Section 8.1 hereof.
"Excess Interest" is defined in Section 12.24 hereof.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Federal Funds Rate" means the fluctuating interest rate per annum
described in part (x) of clause (ii) of the definition of Domestic Rate in
Section 1.2(a) hereof.
"Fund" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"GAAP" means, subject to Section 4.3 hereof, generally accepted
accounting principles as in effect on the Effective Date, applied by the
Parent and its Subsidiaries on a basis consistent with the preparation of
the Parent's financial statements furnished to the Banks as described in
Section 5.4 hereof.
"Guarantor" means (i) the Parent, Xxxxx Xxxx LaSalle Americas, Inc.,
a Maryland corporation, LaSalle Investment Management, Inc., a Maryland
corporation, Xxxxx Lang LaSalle International, Inc., a Delaware
corporation, Xxxxx Xxxx LaSalle Co-Investment, Inc., a Maryland
corporation, Xxxxx Lang LaSalle Limited, a company organized under the laws
of England and Wales, and Xxxxx Xxxx LaSalle GmbH, a company organized
under the laws of Germany and (ii) any other Subsidiary of the Borrower
designated by the Borrower as a Guarantor as required by Section 7.22
hereof.
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"Guaranty" by any Person means (without duplication) all obligations
(other than endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) of such Person guaranteeing or in
effect guaranteeing any Indebtedness, dividend or other financial
obligation (including, without limitation, limited or full recourse
obligations in connection with sales of receivables or any other Property)
of any other Person (the "primary obligor") in any manner, whether directly
or indirectly, including, without limitation, all obligations incurred
through an agreement, contingent or otherwise, by such Person: (i) to
purchase such Indebtedness or obligation or any Property or assets
constituting security therefor, (ii) to advance or supply funds (x) for the
purchase or payment of such Indebtedness or obligation, or (y) to maintain
working capital or other balance sheet condition, or otherwise to advance
or make available funds for the purchase or payment of such Indebtedness or
obligation, or (iii) to lease property or to purchase Securities or other
property or services primarily for the purpose of assuring the owner of
such Indebtedness or obligation of the ability of the primary obligor to
make payment of the Indebtedness or obligation, or (iv) otherwise to assure
the owner of the Indebtedness or obligation of the primary obligor against
loss in respect thereof. For the purpose of all computations made under
this Agreement, the amount of a Guaranty in respect of any obligation shall
be deemed to be equal to the maximum aggregate amount of such obligation at
the time the amount of the Guaranty is being determined or, if the Guaranty
is limited to less than the full amount of such obligation, the maximum
aggregate potential liability under the terms of the Guaranty at the time
the amount of the Guaranty is being determined.
"Hazardous Material" means any substance or material which is
hazardous or toxic, and includes, without limitation, (a) asbestos,
polychlorinated biphenyls, dioxins and petroleum or its by-products or
derivatives (including crude oil or any fraction thereof) and (b) any other
material or substance classified or regulated as "hazardous" or "toxic"
pursuant to any Environmental and Health Law.
"Indebtedness" means for any Person (without duplication),
(i) obligations of such Person for borrowed money, (ii) obligations of such
Person representing the deferred purchase price of property or services
other than accounts payable arising in the ordinary course of business on
terms customary in the trade, (iii) obligations of such Person evidenced by
notes, acceptances, or other instruments of such Person or pursuant to
letters of credit issued for such Person's account, (iv) obligations,
whether or not assumed, secured by Liens or payable out of the proceeds or
production from Property now or hereafter owned or acquired by such Person,
(v) Capitalized Lease Obligations of such Person, and (vi) obligations for
which such Person is obligated pursuant to a Guaranty. For the sake of
clarity, performance guarantees (other than guarantees of the payment of
Indebtedness), performance and surety bonds and environmental, "bad boy"
and completion guarantees provided by the Borrower, the Parent, or any
Subsidiary, pension liabilities of the Parent or any Subsidiary and
indebtedness consolidated onto the books and records of the Parent for GAAP
purposes under either EITF 04-05 or Fin 46R which otherwise would not be
consolidated, shall not be considered as Indebtedness.
"Interest Coverage Ratio" means as of the last day of any calendar
quarter the ratio of the sum of Adjusted EBIT PLUS Rentals for the four
calendar quarters then ended to the sum of Cash Interest Expense PLUS
Rentals for the same four calendar quarters then ended.
"Interest Expense" means, for any period, the sum of all interest
charges of the Parent and its Restricted Subsidiaries for such period
determined on a consolidated basis in accordance with GAAP.
"Interest Period" is defined in Section 1.5 hereof.
"Investment" is defined in Section 7.14 hereof.
"Lending Office" is defined in Section 9.4 hereof.
14
"Level I" exists at any date if, at such date, the Total Funded Debt
to Adjusted EBITDA Ratio is less than 1.00 to 1.00.
"Level II" exists at any date if, at such date, Level I does not
exist and the Total Funded Debt to Adjusted EBITDA Ratio is less than 1.50
to 1.00.
"Level III" exists at any date if, at such date, neither Level I nor
Level II exists and the Total Funded Debt to Adjusted EBITDA Ratio is less
than 2.00 to 1.00.
"Level IV" exists at any date if, at such date, neither Level I,
Level II nor Level III exists and the Total Funded Debt to Adjusted EBITDA
Ratio is less than 2.50 to 1.00.
"Level V" exists at any date if, at such date, neither Xxxxx X,
Xxxxx XX, Xxxxx XXX, nor Level IV exists and the Total Funded Debt to
Adjusted EBITDA Ratio is less than 3.00 to 1.00.
"Level VI" exists at any date if, at such date, none of Level I,
Level II, Level III, Level IV or Level V exists.
"LIBOR" is defined in Section 1.2(b) hereof.
"Lien" means any interest in Property securing an obligation owed to
a Person other than the owner of the Property, whether such interest is
based on the common law, statute or contract, including, but not limited
to, the security interest lien arising from a mortgage, encumbrance,
pledge, conditional sale, security agreement or trust receipt, or a lease,
consignment or bailment for security purposes. The term "Lien" shall also
include survey exceptions or encumbrances, easements or reservations, or
rights of others for rights-of-way, utilities and other similar purposes,
or zoning or other restrictions as to the use of real properties. For the
purposes of this definition, a Person shall be deemed to be the owner of
any Property which it has acquired or holds subject to a conditional sale
agreement, Capital Lease or other arrangement pursuant to which title to
the Property has been retained by or vested in some other Person for
security purposes, and such retention of title shall constitute a "Lien."
"Loan" is defined in Section 1.1 hereof and, as so defined, includes
a Domestic Rate Loan or Eurodollar Loan, each of which is a "type" of Loan
hereunder.
"Material Adverse Effect" means a material and adverse effect on the
business, operations, Property or financial or other condition of the
Parent and its Subsidiaries, taken as a whole.
"Maturity Date" means June 6, 2012.
"Maximum Rate" is defined in Section 12.24 hereof.
"Multicurrency Credit Agreement" means the Amended and Restated
Multicurrency Credit Agreement dated as of June 6, 2007 among Xxxxx Xxxx
LaSalle Finance B.V., the Guarantors party thereto, the banks party
thereto, and Bank of Montreal, as Administrative Agent, as extended,
renewed, amended or restated from time to time.
"Net Cash Proceeds" means, with respect to any offering of equity
securities of a Person, cash and cash equivalent proceeds received by or
for such Person's account, net of reasonable legal, underwriting, printing
and other fees and expenses incurred as a direct result thereof.
"Non-Real Estate Restricted Subsidiary" means a Restricted Subsidiary
which is not established solely for the purpose of making investments in
real estate and real estate related assets, including notes and other
securities, as permitted under Section 7.14(j) or Section 7.14(k) hereof.
15
"Note" means any promissory note issued at the request of a Bank
pursuant to Section 1.9 in the form of Exhibit A evidencing such Bank's
Loans.
"Obligations" means all fees payable hereunder, all obligations of
the Borrower to pay principal or interest on Loans, and all other payment
obligations of the Borrower or any Guarantor arising under or in relation
to any Credit Document.
"Parent" means Xxxxx Lang LaSalle Incorporated, a Maryland
corporation.
"PBGC" is defined in Section 5.8 hereof.
"Percentage" means, for each Bank, the percentage of the Commitments
represented by such Bank's Commitment or, if the Commitments have been
terminated, the percentage held by such Bank of the aggregate principal
amount of all outstanding Obligations.
"Permitted Adjustment" means, for any period, transition charges
incurred by the Parent or any Restricted Subsidiaries during such period
relating to the Acquisition by the Parent of all of the outstanding equity
of (i) Xxxxxxxxx and Xxxx LLC, a Delaware limited liability company, to the
extent such charges do not exceed $10,000,000 in the aggregate for all
periods, (ii) Xxxxxx'x Holding GmbH Company (now known as Xxxxxx'x Xxxxx
Xxxx LaSalle Retail GmbH), a German company, to the extent such charges do
not exceed $5,000,000 in the aggregate for all periods and (iii) Staubach
Holdings, Inc., a Texas corporation, to the extent such charges do not
exceed $25,000,000 in the aggregate for all periods.
"Person" means an individual, partnership, corporation, limited
liability company, association, trust, unincorporated organization or any
other entity or organization, including a government or any agency or
political subdivision thereof.
"Plan" means at any time an employee pension benefit plan covered by
Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code that is either (i) maintained by a member of the
Controlled Group or (ii) maintained pursuant to a collective bargaining
agreement or any other arrangement under which more than one employer makes
contributions and to which a member of the Controlled Group is then making
or accruing an obligation to make contributions or has within the preceding
five plan years made contributions.
"Pricing Date" means, for any fiscal quarter of the Parent ended
after the date hereof, the latest date by which the Parent is required to
deliver a Compliance Certificate for such fiscal quarter pursuant to
Section 7.6(b). The Applicable Margin established on a Pricing Date shall
remain in effect until the next Pricing Date. If the Parent has not
delivered a Compliance Certificate by the date such Compliance Certificate
is required to be delivered under Section 7.6(b), Level VI shall be deemed
to exist from such required delivery date until a Compliance Certificate is
delivered before the next Pricing Date. If the Parent subsequently
delivers such a Compliance Certificate before the next Pricing Date, the
Applicable Margin established by such late delivered Compliance Certificate
shall take effect from the date of delivery until the next Pricing Date.
In all other circumstances, the Applicable Margin established by a
Compliance Certificate shall be in effect from the Pricing Date that occurs
immediately after the end of the Parent's fiscal quarter covered by such
Compliance Certificate until the next Pricing Date.
"Property" means any interest in any kind of property or asset,
whether real, personal or mixed, or tangible or intangible, whether now
owned or hereafter acquired.
16
"Rentals" means and includes all fixed rents (including as such all
payments which the lessee is obligated to make to the lessor on termination
of the lease or surrender of the property) payable by the Parent or any of
its Subsidiaries, as lessee or sublessee under a lease of real or personal
property, but shall be exclusive of any amounts required to be paid by the
Parent or any of its Subsidiaries (whether or not designated as rents or
additional rents) on account of maintenance, repairs, insurance, taxes and
similar charges.
"Required Banks" means, as of the date of determination thereof,
Banks whose outstanding Loans constitute more than 51% of the sum of the
total outstanding Loans of the Banks.
"Restricted Subsidiary" means any Subsidiary of the Parent other than
an Unrestricted Subsidiary.
"SEC" means the Securities and Exchange Commission.
"Security" has the same meaning as in Section 2(l) of the Securities
Act of 1933, as amended.
"Set-Off" is defined in Section 12.7 hereof.
"Subordinated Indebtedness" means any Indebtedness which is
subordinated in right of payment to the prior payment of the Loans and
other Obligations, in a principal amount and pursuant to documentation,
containing interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies and other material terms in form
and substance satisfactory to the Banks.
"Subsidiary" means a corporation, partnership or other entity that,
under GAAP, is included in the consolidated financial statements of the
Parent.
"Subsidiary Guarantee Agreement" means a letter to the Administrative
Agent in the form of Exhibit C hereto executed by a Subsidiary whereby it
acknowledges it is party hereto as a Guarantor under Section 11 hereof.
"Term Loan Increase" is defined in Section 1.13 hereof.
"Total Funded Debt" means, at any time the same is to be determined,
the aggregate of all Indebtedness of the Parent and its Restricted
Subsidiaries determined without duplication on a consolidated basis MINUS
(i) the aggregate stated amount of performance letters of credit issued for
the account of the Parent or any Restricted Subsidiary other than any
"Letter of Credit" issued under the Multicurrency Credit Agreement and (ii)
the aggregate principal amount of debt for borrowed money owed by the
Parent or any Restricted Subsidiary under overdraft facilities but only to
the extent of cash held by the Parent and its Restricted Subsidiaries on a
consolidated basis.
"Total Funded Debt to Adjusted EBITDA Ratio" means as of the last day
of any calendar quarter the ratio of the Total Funded Debt as of such day
to Adjusted EBITDA for the four calendar quarters then ended.
"Unfunded Vested Liabilities" means, with respect to any Plan at any
time, the amount (if any) by which (i) the present value of all vested
nonforfeitable accrued benefits under such Plan exceeds (ii) the fair
market value of all Plan assets allocable to such benefits, all determined
as of the then most recent valuation date for such Plan, but only to the
extent that such excess represents a potential liability of a member of the
Controlled Group to the PBGC or the Plan under Title IV of ERISA.
17
"Unrestricted Subsidiary" means any Subsidiary of the Parent (other
than a Guarantor or the Borrower) which (i) is established for the sole
purpose of investing in real estate and real estate related assets
including notes and other securities and (ii) is designated by the Parent
(with prior written notice to the Administrative Agent) to be an
Unrestricted Subsidiary; PROVIDED THAT no Subsidiary may be an Unrestricted
Subsidiary for more than 180 days.
"U.S. Dollars" and "$" each means the lawful currency of the United
States of America.
"Voting Stock" of any Person means capital stock of any class or
classes or other equity interests (however designated) having ordinary
voting power for the election of directors or similar governing body of
such Person, other than stock or other equity interests having such power
only by reason of the happening of a contingency.
"Welfare Plan" means a "welfare plan", as defined in Section 3(1) of
ERISA.
"Wholly-Owned" when used in connection with any Subsidiary of the
Parent means a Subsidiary of which all of the issued and outstanding shares
of stock or other equity interests (other than directors' qualifying shares
as required by law) shall be owned by the Parent and/or one or more of its
Wholly-Owned Subsidiaries.
SECTION 4.2. INTERPRETATION. The foregoing definitions shall be
equally applicable to both the singular and plural forms of the terms
defined. All references to times of day in this Agreement shall be
references to Chicago, Illinois time unless otherwise specifically
provided. Where the character or amount of any asset or liability or item
of income or expense is required to be determined or any consolidation or
other accounting computation is required to be made for the purposes of
this Agreement, the same shall be done in accordance with GAAP, to the
extent applicable, except where such principles are inconsistent with the
specific provisions of this Agreement.
SECTION 4.3. CHANGE IN ACCOUNTING PRINCIPLES. If, after the date of
this Agreement, there shall occur any change in GAAP from those used in the
preparation of the financial statements referred to in Section 7.6 hereof
and such change shall result in a material change in the method of
calculation of any financial covenant, standard or term found in this
Agreement, either the Borrower or the Required Banks may by notice to the
Banks and the Borrower, respectively, require that the Banks and the
Borrower negotiate in good faith to amend such covenants, standards, and
terms so as equitably to reflect such change in accounting principles, with
the desired result being that the criteria for evaluating the financial
condition of the Parent and its Subsidiaries shall be the same as if such
change had not been made. No delay by the Borrower or the Required Banks
in requiring such negotiation shall limit their right to so require such a
negotiation at any time after such a change in accounting principles.
Until any such covenant, standard, or term is amended in accordance with
this Section 4.3, financial covenants shall be computed and determined in
accordance with GAAP without giving effect to the relevant change in
accounting principles. Without limiting the generality of the foregoing,
the Borrower shall neither be deemed to be in compliance with any financial
covenant hereunder nor out of compliance with any financial covenant
hereunder if such state of compliance or noncompliance, as the case may be,
would not exist but for the occurrence of a change in accounting principles
after the date hereof.
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SECTION 5. REPRESENTATIONS AND WARRANTIES.
Each of the Borrower and the Parent hereby represents and warrants to
the Administrative Agent and each Bank as to itself and, where the
following representations and warranties apply to Subsidiaries, as to each
of its Subsidiaries, as follows:
SECTION 5.1. CORPORATE ORGANIZATION AND AUTHORITY. The Parent is
duly organized and existing in good standing under the laws of the State of
Maryland; has all necessary corporate power to carry on its present
business; and is duly licensed or qualified and in good standing in each
jurisdiction in which the nature of the business transacted by it or the
nature of the Property owned or leased by it makes such licensing,
qualification or good standing necessary and in which the failure to be so
licensed, qualified or in good standing would reasonably be expected to
have a Material Adverse Effect. The Borrower is duly incorporated and
existing under the laws of The Netherlands as a private company with
limited liability (a besloten vennootschap met beperkte aansprakelijkheid);
has all necessary corporate power to carry on its present business; and is
duly licensed or qualified and in good standing in each jurisdiction in
which the nature of the business transacted by it or the nature of the
Property owned or leased by it makes such licensing, qualification or good
standing necessary and in which the failure to be so licensed, qualified or
in good standing would reasonably be expected to have a Material Adverse
Effect.
SECTION 5.2. SUBSIDIARIES. Schedule 5.2 (as updated from time to
time pursuant to Section 7.22) hereto identifies each Guarantor, the
jurisdiction of its organization, the percentage of issued and outstanding
shares of each class of its capital stock or equity interests, as the case
may be, owned by the Parent and the Subsidiaries and, if such percentage is
not 100% (excluding directors' qualifying shares as required by law), a
description of each class of its authorized capital stock and other equity
interests and the number of shares of each class issued and outstanding.
Except to the extent that would not reasonably be expected to have a
Material Adverse Effect, each Subsidiary is duly incorporated or formed and
existing in good standing as a corporation, limited partnership, limited
liability company or other entity under the laws of the jurisdiction of its
incorporation or formation, has all necessary corporate or other power to
carry on its present business, and is duly licensed or qualified and in
good standing in each jurisdiction in which the nature of the business
transacted by it or the nature of the Property owned or leased by it makes
such licensing or qualification necessary. All of the issued and
outstanding shares of capital stock and other equity interests of each
Subsidiary are validly issued and outstanding and fully paid and, if such
Subsidiary is a corporation, nonassessable. All such shares owned by the
Parent are owned beneficially, and of record, free of any Lien.
SECTION 5.3. CORPORATE AUTHORITY AND VALIDITY OF OBLIGATIONS. The
Borrower has full power and authority to enter into this Agreement and the
other Credit Documents to which it is a party, to make the borrowings
herein provided for, to issue its Notes in evidence thereof, and to perform
all of its obligations under the Credit Documents to which it is a party.
Each Guarantor has full power and authority to enter into this Agreement as
a signatory hereto or pursuant to a Subsidiary Guarantee Agreement and to
perform all of its obligations hereunder. Each Credit Document to which
the Borrower is a party has been duly authorized, executed and delivered by
the Borrower and constitutes valid and binding obligations of the Borrower
in accordance with its terms. Each Credit Document to which a Guarantor is
a party has been duly authorized, executed and delivered by such Guarantor
and constitutes valid and binding obligations of such Guarantor in
accordance with its terms. No Credit Document to which the Borrower is a
party, nor the performance or observance by the Borrower of any of the
matters or things therein provided for, contravenes any provision of law or
19
any provision of the articles of association ("statuten") of the Borrower
or (individually or in the aggregate) any material Contractual Obligation
of or binding upon the Borrower or any of its Properties or results in or
requires the creation or imposition of any Lien on any of the Properties or
revenues of the Borrower. No Credit Document to which a Guarantor is a
party, nor the performance or observance by such Guarantor of any of the
matters or things therein provided for, contravenes any provision of law or
any charter or by-law provision of such Guarantor or (individually or in
the aggregate) any material Contractual Obligation of or binding upon such
Guarantor or any of its Properties or results in or requires the creation
or imposition of any Lien on any of the Properties or revenues of such
Guarantor.
SECTION 5.4. FINANCIAL STATEMENTS. All financial statements
heretofore delivered to the Banks showing historical performance for each
of the Parent's fiscal years ending on or before December 31, 2007, have
been prepared in accordance with GAAP applied on a basis consistent, except
as otherwise noted therein, with that of the previous fiscal year. Each of
such financial statements fairly presents on a consolidated basis the
financial condition of the Parent and its Subsidiaries as of the dates
thereof and the results of operations for the periods covered thereby. The
Parent and its Subsidiaries had, as of the date of the relevant financial
statements no material contingent liabilities other than those disclosed in
such financial statements referred to in this Section 5.4 or in comments or
footnotes thereto, or in any report supplementary thereto, heretofore
furnished to the Banks. Since December 31, 2007, there has been no
material adverse change which has not been disclosed to the Banks in the
business, operations, Property or financial or other condition, or business
prospects, of the Parent and its Subsidiaries on a consolidated basis.
SECTION 5.5. NO LITIGATION; NO LABOR CONTROVERSIES.
(a) Except as disclosed in the Parent's periodic current reports
filed with the SEC prior to the Effective Date, there is no litigation or
governmental proceeding pending, or to the knowledge of the Parent or any
Guarantor threatened, against the Parent or any Subsidiary which, if
adversely determined, would reasonably be expected (individually or in the
aggregate) to have a Material Adverse Effect.
(b) There are no labor controversies pending or, to the best
knowledge of the Borrower, Parent or any Guarantor, threatened against the
Parent or any Subsidiary which would reasonably be expected (insofar as the
Borrower or Parent may reasonably foresee) to have a Material Adverse
Effect.
SECTION 5.6. TAXES. The Parent and its Subsidiaries have filed all
United States federal tax returns, and all other tax returns, required to
be filed and have paid all taxes due pursuant to such returns or pursuant
to any assessment received by the Parent or any Subsidiary, except such
taxes, if any, as are being contested in good faith and for which adequate
reserves have been provided. No notices of tax liens have been filed and
no claims are being asserted concerning any such taxes, which liens or
claims are material to the financial condition of the Parent and its
Subsidiaries on a consolidated basis taken as a whole. The charges,
accruals and reserves on the books of the Parent and its Subsidiaries for
any taxes or other governmental charges are adequate.
SECTION 5.7. APPROVALS. No authorization, consent, license,
exemption, filing or registration with any court or governmental
department, agency or instrumentality, nor any approval or consent of the
stockholders of the Parent or any Subsidiary or from any other Person, is
necessary to the valid execution, delivery or performance by the Parent or
any Subsidiary of any Credit Document to which it is a party except for
such approvals and consents which have been obtained and are in full force
and effect.
20
SECTION 5.8. ERISA. With respect to each Plan, the Parent and each
other member of the Controlled Group has fulfilled its obligations under
the minimum funding standards of and is in compliance in all material
respects with the Employee Retirement Income Security Act of 1974, as
amended ("ERISA"), and with the Code to the extent applicable to it and has
not incurred any liability to the Pension Benefit Guaranty Corporation
("PBGC") or a Plan under Title IV of ERISA other than a liability to the
PBGC for premiums under Section 4007 of ERISA. Neither the Parent nor any
Subsidiary has any contingent liabilities for any post-retirement benefits
under a Welfare Plan, other than liability for continuation coverage
described in Part 6 of Title I of ERISA.
SECTION 5.9. GOVERNMENT REGULATION. Neither the Parent nor any
Subsidiary is an "investment company" within the meaning of the Investment
Company Act of 1940, as amended, or to the extent a Subsidiary is an
"investment company," it is properly registered with the SEC.
SECTION 5.10. MARGIN STOCK. Neither the Parent nor any Subsidiary
is engaged principally, or as one of its primary activities, in the
business of extending credit for the purpose of purchasing or carrying
margin stock ("margin stock" to have the same meaning herein as in
Regulation U of the Board of Governors of the Federal Reserve System). The
Borrower will not use the proceeds of any Loan in a manner that violates
any provision of Regulation U or X of the Board of Governors of the Federal
Reserve System. Margin stock (as hereinabove defined) constitutes less
than 25% of the assets of the Parent and its Subsidiaries which are subject
to any limitation on sale, pledge or other restriction hereunder.
SECTION 5.11. LICENSES AND AUTHORIZATIONS; COMPLIANCE WITH
ENVIRONMENTAL AND HEALTH LAWS.
(a) The Parent and each of its Subsidiaries has all necessary
licenses, permits and governmental authorizations to own and operate its
Properties and to carry on its business as currently conducted and
contemplated, except to the extent the failure to have such licenses,
permits or authorizations would not reasonably be expected to have a
Material Adverse Effect.
(b) To the best of the Borrower's and each Guarantor's knowledge,
the business and operations of the Parent and each Subsidiary comply in all
respects with all applicable Environmental and Health Laws, except where
the failure to so comply would not (individually or in the aggregate)
reasonably be expected to have a Material Adverse Effect.
(c) Neither the Parent nor any Subsidiary has given, nor is it
required to give, nor has it received, any notice, letter, citation, order,
warning, complaint, inquiry, claim or demand to or from any governmental
entity or in connection with any court proceeding with respect to a matter
which would reasonably be expected to have a Material Adverse Effect
claiming that: (i) the Parent or any Subsidiary has violated, or is about
to violate, any Environmental and Health Law; (ii) there has been a
release, or there is a threat of release, of Hazardous Materials from the
Parent's or any Subsidiary's Property, facilities, equipment or vehicles;
(iii) the Parent or any Subsidiary may be or is liable, in whole or in
part, for the costs of cleaning up, remediating or responding to a release
of Hazardous Materials; or (iv) any of the Parent's or any Subsidiary's
property or assets are subject to a Lien in favor of any governmental
entity for any liability, costs or damages, under any Environmental and
Health Law arising from, or costs incurred by such governmental entity in
response to, a release of a Hazardous Materials.
SECTION 5.12. OWNERSHIP OF PROPERTY; LIENS. The Parent and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property owned or leased by it, and good
title to or valid leasehold interests in all its other Property. None of
the Parent's real property is subject to any Lien or Capitalized Lease
Obligation except as permitted in Section 7.9, and none of the Parent's or
any Restricted Subsidiary's other Property is subject to any Lien, except
as permitted in Section 7.9.
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SECTION 5.13. NO BURDENSOME RESTRICTIONS; COMPLIANCE WITH
AGREEMENTS. Neither the Parent nor any Subsidiary is (a) party or subject
to any law, regulation, rule or order, or any Contractual Obligation that
(individually or in the aggregate) would reasonably be expected to have a
Material Adverse Effect or (b) in default in the performance, observance or
fulfillment of any of the obligations, covenants or conditions contained in
any agreement to which it is a party, which default would reasonably be
expected to have a Material Adverse Effect.
SECTION 5.14. ACCURACY OF INFORMATION. No information, exhibit or
report furnished by the Parent or Borrower to any Bank or the
Administrative Agent in connection with a Loan or the negotiation of the
Credit Documents contained any material misstatement of fact or omitted to
state any fact necessary to make the statements contained therein not
misleading, the Administrative Agent and the Banks acknowledging that as to
any projections furnished to the Administrative Agent and the Banks, the
Parent only represents that the same were prepared on the basis of
information and estimates the Parent believed to be reasonable.
SECTION 6. CONDITIONS PRECEDENT.
The obligation of each Bank to advance, continue, or convert any Loan
shall be subject to the following conditions precedent:
SECTION 6.1. INITIAL CREDIT EVENT. Before or concurrently with the
first Credit Event:
(a) The Administrative Agent shall have received this
Agreement duly executed by the Borrower, each Guarantor, the
Administrative Agent, and each Bank;
(b) The Administrative Agent shall have received for each
Bank in form and substance satisfactory to the Administrative Agent
the favorable written opinion of (i) Xxxxxx X. Xxxx, Esquire, Deputy
Global General Counsel to the Borrower and Guarantors, (ii) Loyens &
Loeff, Dutch counsel to the Borrower, (iii) Xxxxx & XxXxxxxx, English
counsel to Xxxxx Lang LaSalle Limited, and (iv) Lovells, German
counsel to Xxxxx Xxxx LaSalle GmbH;
(c) The Administrative Agent shall have received for each
Bank copies of the notarial deed of incorporation (including the
articles of association) of the Borrower, certified by a Dutch civil
law notary to be true copies and an original extract of the
commercial register of the chamber of commerce of Amsterdam relating
to the Borrower;
(d) The Administrative Agent shall have received copies of
the Certificate of Incorporation and bylaws (or equivalent) of each
Guarantor, certified in each instance by its secretary or an
assistant secretary (or its equivalent);
(e) The Administrative Agent shall have received copies,
certified by the secretary or assistant secretary (or its equivalent)
of each Guarantor, of its board of directors' resolutions (or its
equivalent) authorizing the execution of the Credit Documents to
which it is a party;
(f) The Administrative Agent shall have received
certificates, executed by the secretary or assistant secretary of
each Guarantor, which shall identify by name and title and bear the
signature of the partners or officers authorized to sign the Credit
Documents to which it is a party;
(g) The Administrative Agent shall have received copies of
the certificates of good standing (to the extent relevant) for each
Guarantor (dated no earlier than 30 days prior to the date hereof)
from the office of the secretary of the state of its incorporation or
organization;
22
(h) The Administrative Agent shall have received to the
extent requested by any Bank, such Bank's duly executed Notes of the
Borrower dated the date hereof and otherwise in compliance with the
provisions of Section 1.9(d) hereof;
(i) The Administrative Agent shall have received for each
Bank a list of the Borrower's Authorized Representatives;
(j) All legal matters incident to the execution and delivery
of the Credit Documents shall be satisfactory to the Banks; and
(k) The Administrative Agent and each Bank shall have
received for each fiscal year of the Parent through the fiscal year
ending December 31, 2010, a business plan showing in reasonable
detail projected operating budgets, consolidated and consolidating
revenues, expenses, and balance sheets on a quarter-by-quarter basis,
such business plan to be in form and substance satisfactory to the
Administrative Agent and each Bank and shall include a summary of all
assumptions made in preparing such business plan.
SECTION 6.2. ALL CREDIT EVENTS. As of the time of each Credit Event
hereunder:
(a) In the case of a Borrowing, the Administrative Agent
shall have received the notice required by Section 1.4 hereof;
(b) In the case of a Borrowing of Loans on the Effective
Date, each of the representations and warranties set forth in
Section 5 hereof shall be and remain true and correct in all material
respects as of said time, except that if any such representation or
warranty relates solely to an earlier date it need only remain true
as of such date;
(c) In the case of a Borrowing of Loans on the Effective
Date, no Default or Event of Default shall have occurred and be
continuing or would occur as a result of such Credit Event; and
(d) Such Credit Event shall not violate any order, judgment
or decree of any court or other authority or any provision of law or
regulation applicable to the Administrative Agent or any Bank
(including, without limitation, Regulation U of the Board of
Governors of the Federal Reserve System).
Each request for a Borrowing hereunder shall be deemed to be a
representation and warranty by the Borrower on the date of such Credit
Event as to the facts specified in paragraphs (b) and (c) of this
Section 6.2.
SECTION 7. COVENANTS.
Each of the Borrower and the Parent covenants and agrees that, so
long as any Loan is outstanding hereunder, except to the extent compliance
in any case is waived in writing by the Required Banks:
SECTION 7.1. CORPORATE EXISTENCE; SUBSIDIARIES. The Parent shall,
and shall cause each of its Restricted Subsidiaries to, preserve and
maintain its existence, subject to the provisions of Section 7.12 hereof;
PROVIDED THAT the Parent shall not be required to preserve the existence of
any Restricted Subsidiary if the maintenance or preservation thereof, as
determined by the Board of Directors of the Parent, is no longer desirable
in the conduct of the business of the Parent and its Subsidiaries, taken as
a whole.
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SECTION 7.2. MAINTENANCE. The Parent will maintain, preserve and
keep its Property, necessary to the proper conduct of its business in
reasonably good repair, working order and condition and will from time to
time make all reasonably necessary repairs, renewals, replacements,
additions and betterments thereto so that at all times such plants,
properties and equipment shall be reasonably preserved and maintained, and
the Parent will cause each of its Subsidiaries to do so in respect of
Property owned or used by it; PROVIDED, HOWEVER, that nothing in this
Section 7.2 shall prevent the Parent or a Subsidiary from discontinuing the
operation or maintenance of any such Properties if such discontinuance
would not reasonably be expected to have a Material Adverse Effect.
SECTION 7.3. TAXES. The Parent will duly pay and discharge, and
will cause each of its Subsidiaries duly to pay and discharge, all taxes,
assessments, and governmental charges or levies upon or against it or
against its Properties, in each case before the same becomes delinquent and
before penalties accrue thereon, unless and to the extent that the same is
being contested in good faith by appropriate proceedings and reserves in
conformity with GAAP have been provided therefor on the books of the
Parent.
SECTION 7.4. ERISA. The Parent will, and will cause each of its
Subsidiaries to, promptly pay and discharge all obligations and liabilities
arising under ERISA of a character which if unpaid or unperformed might
result in the imposition of a Lien against any of its Property. The Parent
will, and will cause each of its Subsidiaries to promptly notify the
Administrative Agent of (i) the occurrence of any reportable event (as
defined in ERISA) affecting a Plan, other than any such event of which the
PBGC has waived notice by regulation, (ii) receipt of any notice from PBGC
of its intention to seek termination of any Plan or appointment of a
trustee therefor, (iii) its intention to terminate or withdraw from any
Plan, and (iv) the occurrence of any event affecting any Plan which could
result in the incurrence by the Parent or any of its Subsidiaries of any
material liability, fine or penalty, or any material increase in the
contingent liability of the Parent or any of its Subsidiaries under any
post-retirement Welfare Plan benefit. The Administrative Agent will
promptly distribute to each Bank any notice it receives from the Parent
pursuant to this Section 7.4.
SECTION 7.5. INSURANCE. The Parent will maintain, and will cause
each of its Subsidiaries to maintain, insurance with good and responsible
insurance companies, covering insurable Property owned by it with respect
to such risks as is consistent with sound business practice. The Parent
will upon request of any Bank furnish to such Bank a summary setting forth
the nature and extent of the insurance maintained pursuant to this
Section 7.5.
SECTION 7.6. FINANCIAL REPORTS AND OTHER INFORMATION. (a) The
Parent will maintain a system of accounting in accordance with GAAP and
will furnish to the Banks and their respective duly authorized
representatives such information respecting the business and financial
condition of the Parent and its Subsidiaries as any Bank may reasonably
request; and without any request, the Parent will furnish each of the
following to each Bank:
(i) within 60 days after the end of each of the first three
quarterly fiscal periods of the Parent, a copy of the Parent's Form
10-Q Report filed with the SEC;
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(ii) within 90 days after the end of each fiscal year of the
Parent, a copy of the Parent's Form 10-K Report filed with the SEC,
prepared by the Parent and containing or including as an exhibit
thereto the Parent's financial statements for such fiscal year as
certified by independent public accountants of recognized national
standing selected by the Parent in accordance with GAAP with such
accountants' unqualified opinion to the effect that the financial
statements have been prepared in accordance with GAAP and present
fairly in all material respects in accordance with GAAP the
consolidated financial position of the Parent and its Subsidiaries as
of the close of such fiscal year and the results of their operations
and cash flows for the fiscal year then ended and that an examination
of such accounts in connection with such financial statements has
been made in accordance with generally accepted auditing standards
and, accordingly, such examination included such tests of the
accounting records and such other auditing procedures as were
considered necessary in the circumstances;
(iii) within the period provided in subsection (ii) above, the
written statement of the accountants who certified the audit report
thereby required that in the course of their audit they have obtained
no knowledge of any Default or Event of Default with respect to
Sections 7.11, 7.15, 7.16, and 7.17 or, if such accountants have
obtained knowledge of any such Default or Event of Default, they
shall disclose in such statement the nature and period of the
existence thereof;
(iv) promptly after the sending or filing thereof, copies of
all proxy statements, financial statements and reports the Parent
sends to its shareholders, and copies of all other regular, periodic
and special reports and all registration statements the Parent files
with the SEC or any successor thereto, or with any national
securities exchanges; and
(v) within 90 days after the beginning of each fiscal year of
the Parent an operating budget for the Parent and its Subsidiaries
for such fiscal year of the Parent.
(b) Each financial statement furnished to the Banks pursuant to
subsection (i) or (ii) of this Section 7.6 shall be accompanied by a
Compliance Certificate signed by the Parent's chief financial officer,
treasurer or controller showing the Parent's compliance with the covenants
set forth in Sections 7.14(k), 7.15, 7.16, and 7.17 hereof.
(c) The Parent will promptly (and in any event within three
Business Days after any of the President, chief executive officer, chief
financial officer, chief operating officer, treasurer, assistant treasurer,
or controller of the Parent has knowledge thereof) give notice to the
Administrative Agent:
(i) of the occurrence of any Change of Control, Default or
Event of Default;
(ii) of any default or event of default under any Contractual
Obligation of the Parent or any of its Subsidiaries, except for a
default or event of default which is not reasonably expected to have
a Material Adverse Effect;
(iii) of the occurrence of an event or condition which would
reasonably be expected to result in a Material Adverse Effect; and
(iv) of any litigation or governmental proceeding of the type
described in Section 5.5 hereof.
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SECTION 7.7. BANK INSPECTION RIGHTS. uUpon reasonable notice from
any Bank, the Parent will permit such Bank (and such Persons as any Bank
may designate) during normal business hours and under the Parent's
guidance, to visit and inspect any of the Property of the Parent or any of
its Subsidiaries, to examine all of their books of account, records,
reports and other papers, to make copies and extracts therefrom, and to
discuss their respective affairs, finances and accounts with their
respective officers, employees and, after the occurrence and during the
continuance of an Event of Default, independent public accountants.
SECTION 7.8. CONDUCT OF BUSINESS. Neither the Parent nor any
Subsidiary will engage in any line of business if, as a result, the general
nature of the business of the Parent and its Subsidiaries taken as a whole
would be substantially changed from that conducted on the date hereof.
SECTION 7.9. LIENS. The Parent will not, and will not permit any of
its Restricted Subsidiaries to, create, incur, permit to exist or to be
incurred any Lien of any kind on any Property owned by the Parent or any
Restricted Subsidiary; PROVIDED, HOWEVER, that this Section 7.9 shall not
apply to nor operate to prevent:
(a) Liens arising by operation of law in connection with
worker's compensation, unemployment insurance, social security
obligations, taxes, assessments, statutory obligations or other
similar charges, good faith deposits, pledges or Liens in connection
with bids, tenders, contracts or leases to which the Parent or any
Subsidiary is a party (other than contracts for borrowed money), or
other deposits required to be made in the ordinary course of
business; PROVIDED that in each case the obligation secured is not
overdue or, if overdue, is being contested in good faith by
appropriate proceedings and for which reserves in conformity with
GAAP have been provided on the books of the Parent;
(b) mechanics', workmen's, materialmen's, landlords',
carriers' or other similar Liens arising in the ordinary course of
business (or deposits to obtain the release of such Liens) securing
obligations not due or, if due, being contested in good faith by
appropriate proceedings and for which reserves in conformity with
GAAP have been provided on the books of the Parent;
(c) Liens for taxes or assessments or other government
charges or levies on the Parent or any Subsidiary of the Parent or
their respective Properties, not yet due or delinquent, or which can
thereafter be paid without penalty, or which are being contested in
good faith by appropriate proceedings and for which reserves in
conformity with GAAP have been provided on the books of the Parent;
(d) Liens arising out of judgments or awards against the
Parent or any Subsidiary of the Parent, or in connection with surety
or appeal bonds in connection with bonding such judgments or awards,
the time for appeal from which or petition for rehearing of which
shall not have expired or with respect to which the Parent or such
Subsidiary shall be prosecuting an appeal or proceeding for review,
and with respect to which it shall have obtained a stay of execution
pending such appeal or proceeding for review; PROVIDED that the
aggregate amount of liabilities (including interest and penalties, if
any) of the Parent and its Subsidiaries secured by such Liens shall
not exceed $5,000,000 at any one time outstanding;
(e) Survey exceptions or encumbrances, easements or
reservations, or rights of others for rights-of-way, utilities and
other similar purposes, or zoning or other restrictions as to the use
of real properties which are necessary for the conduct of the
activities of the Parent and any Subsidiary of the Parent or which
customarily exist on properties of corporations engaged in similar
activities and similarly situated and which do not in any event
materially impair their use in the operation of the business of the
Parent or any Subsidiary of the Parent;
26
(f) Liens on Property (not constituting Investments) of the
Parent or any of its Subsidiaries created solely for the purpose of
securing Indebtedness permitted by Section 7.19(h) hereof,
representing or incurred to finance, refinance or refund the purchase
price of Property, PROVIDED that no such Lien shall extend to or
cover other Property of the Parent or such Subsidiary other than the
respective Property so acquired, and the principal amount of
Indebtedness secured by any such Lien shall at no time exceed the
original purchase price of such Property; and
(g) Liens not otherwise permitted under this Section 7.9 on
Property (other than (i) shares of stock in any Wholly-Owned
Subsidiary and (ii) receivables, inventory and similar working
capital assets) securing Indebtedness that, when combined with
Capitalized Lease Obligations permitted under Section 7.11, is in an
aggregate principal amount not exceeding $15,000,000 at any time
outstanding.
SECTION 7.10. USE OF PROCEEDS; REGULATION U. The proceeds of each
Borrowing will be used by the Borrower, the Parent and the Parent's
Subsidiaries for working capital, repayment of other Indebtedness, and
other general corporate purposes including acquisitions of businesses and
other investments permitted by Section 7.14. The Borrower will not use any
part of the proceeds of any of the Borrowings directly or indirectly to
purchase or carry any margin stock (as defined in Section 5.10 hereof) or
to extend credit to others for the purpose of purchasing or carrying any
such margin stock.
SECTION 7.11. SALES AND LEASEBACKS. The Parent will not, nor will
it permit any Restricted Subsidiary to, enter into any arrangement with any
bank, insurance company or other lender or investor providing for the
leasing by the Parent or any Subsidiary of any Property theretofore owned
by it and which has been or is to be sold or transferred by such owner to
such lender or investor, except to the extent the aggregate principal
amount of Capitalized Lease Obligations under such leases PLUS the
outstanding principal amount of Indebtedness secured by Liens permitted by
Section 7.9(g) (and not separately permitted by other provisions of Section
7.9) does not exceed $25,000,000 at any time outstanding; PROVIDED THAT the
foregoing shall not operate to prevent any such transaction between the
Parent and any Restricted Subsidiary or between any two Restricted
Subsidiaries to the extent such transaction would otherwise be permitted by
the terms hereof.
SECTION 7.12. MERGERS, CONSOLIDATIONS AND SALES OF ASSETS. (a) The
Parent will not, and will not permit any of its Restricted Subsidiaries to,
(i) consolidate with or be a party to a merger with any other Person or
(ii) sell, lease or otherwise dispose of all or a "substantial part" of the
consolidated assets of the Parent and its Restricted Subsidiaries;
PROVIDED, HOWEVER, that:
(1) any Restricted Subsidiary of the Parent may merge or
consolidate with or into or sell, lease or otherwise convey its
assets to the Parent or any Restricted Subsidiary of which the Parent
directly or indirectly holds at least the same percentage equity
ownership or is entitled through ownership of interests,
contractually or otherwise, to at least the same economic interest;
PROVIDED THAT in any such merger or consolidation involving the
Borrower, the Borrower or the Parent shall be the surviving or
continuing corporation;
27
(2) The Parent and its Subsidiaries may dissolve or liquidate
any Restricted Subsidiary of the Parent (other than the Borrower) or
of such Subsidiary so long as all the assets of such dissolved or
liquidated Restricted Subsidiary (i) were either investments in real
estate, or real estate related assets, including notes and other
securities all of which have been sold or (ii) are concurrently
transferred to the Parent or any Restricted Subsidiary of which the
Parent directly or indirectly holds at least the same percentage
equity ownership or is entitled through ownership of interests,
contractually or otherwise, to at least the same economic interest;
PROVIDED THAT if any Guarantor (other than the Parent) is dissolved
or liquidated all of such Guarantor's assets shall be concurrently
transferred to the Borrower or another Guarantor;
(3) The Parent or any Restricted Subsidiary of the Parent may
consolidate or merge with any other Person if the Borrower or such
Restricted Subsidiary or, in the case of such a transaction involving
the Borrower, the Parent or the Borrower is the surviving or
continuing corporation and at the time of such consolidation or
merger, and after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing;
(4) The Parent and its Subsidiaries may sell or otherwise
dispose of any asset which, in the reasonable judgment of such
Person, have become obsolete or worn out;
(5) The Parent and its Subsidiaries may sell Property to the
extent permitted by Section 7.11;
(6) The Parent and its Subsidiaries may sell delinquent notes
or accounts receivables in the ordinary course of business for
purposes of collection only (and not for the purpose of any bulk sale
or securitization); and
(7) The Parent and its Subsidiaries may in a fair market
value transaction, sell or otherwise dispose of any direct or
indirect Investment in real estate or real estate related assets,
including notes and other securities;
As used in this Section 7.12(a), a sale, lease, transfer or disposition of
assets during any fiscal year shall be deemed to be of a "SUBSTANTIAL PART"
of the consolidated assets of the Parent and its Restricted Subsidiaries if
the net book value of such assets, when added to the net book value of all
other assets (not including dispositions of stock in Subsidiaries permitted
under Section 7.12(b) hereof) sold, leased, transferred or disposed of by
the Parent and its Restricted Subsidiaries during such fiscal year (other
than inventory in the ordinary course of business) exceeds 5% of the total
assets of the Parent and its Restricted Subsidiaries, determined on a
consolidated basis as of the last day of the immediately preceding fiscal
year.
(b) Except with respect to the syndication or other disposition of
Subsidiaries or interests in Subsidiaries through which direct or indirect
Investments in real estate or real estate related assets, including notes
and other securities, are made, the Parent will not sell, transfer or
otherwise dispose of, or permit any Restricted Subsidiary to issue, sell,
transfer or otherwise dispose of, any shares of stock of any class
(including as "stock" for purposes of this Section, any warrants, rights or
options to purchase or otherwise acquire stock or other Securities
exchangeable for or convertible into stock) of any Subsidiary, except to
the Parent or any Restricted Subsidiary of which the Parent directly or
indirectly holds at least the same percentage equity ownership or is
entitled through ownership of interests, contractually or otherwise, to at
least the same economic interest and except for the purpose of qualifying
directors.
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SECTION 7.13. USE OF PROPERTY AND FACILITIES; ENVIRONMENTAL AND
HEALTH AND SAFETY LAWS.
(a) The Parent will, and will cause each of its Subsidiaries to,
comply in all material respects with the requirements of all Environmental
and Health Laws applicable to or pertaining to the Properties or business
operations of the Parent or any Subsidiary of the Parent to the extent
noncompliance would reasonably be expected to have a Material Adverse
Effect. Without limiting the foregoing, the Parent will not, and will not
permit any Person to, except in accordance with applicable law, dispose of
any Hazardous Material into, onto or upon any real property owned or
operated by the Parent or any of its Subsidiaries if such disposal would
reasonably be expected to have a Material Adverse Effect.
(b) The Parent will promptly provide the Banks with copies of any
notice or other instrument of the type described in Section 5.11(c) hereof,
and in no event later than five (5) Business Days after the President,
chief executive officer, chief financial officer, chief operating officer,
treasurer, assistant treasurer or controller of the Parent receives such
notice or instrument.
SECTION 7.14. INVESTMENTS, ACQUISITIONS, LOANS, ADVANCES AND
GUARANTIES. The Parent will not, nor will it permit any Subsidiary to,
directly or indirectly, make, retain or have outstanding any investments
(whether through purchase of stock or obligations or otherwise) in, or
loans or advances to, any other Person (other than the Parent or a
Subsidiary of the Parent), or acquire all or any substantial part of the
assets or business of any other Person (other than the Parent or a
Subsidiary of the Parent) or division thereof, or be or become liable as
endorser, guarantor, surety or otherwise (such as liability as a general
partner) for any debt, obligation or undertaking of any other Person (other
than the Parent or a Subsidiary of the Parent), or otherwise agree to
provide funds for payment of the obligations of another (other than the
Parent or a Subsidiary of the Parent), or supply funds thereto or invest
therein or otherwise assure a creditor of another (other than the Parent or
a Subsidiary of the Parent) against loss, or apply for or become liable to
the issuer of a letter of credit which supports an obligation of another
(other than the Parent or a Subsidiary of the Parent) (cumulatively, all of
the foregoing, being "Investments"); PROVIDED, HOWEVER, that the foregoing
provisions shall not apply to nor operate to prevent:
(a) investments in direct obligations of the United States of
America or of any agency or instrumentality thereof whose obligations
constitute full faith and credit obligations of the United States of
America PROVIDED that any such obligation matures within one year
from the date it is acquired by the Parent or Subsidiary;
(b) investments in commercial paper rated at least P-1 by
Xxxxx'x Investors Service Inc. or A-1 by Standard & Poor's Ratings
Services Group, a division of The XxXxxx-Xxxx Companies, Inc.
maturing within one year of its date of issuance;
(c) demand deposit accounts maintained in the ordinary course
of business;
(d) investments in certificates of deposit issued by and time
deposits with any commercial bank (whether domestic or foreign)
having capital and surplus of not less than $50,000,000 maturing
within one year from the date of issuance thereof or in banker's
acceptances endorsed by any Bank or other such commercial bank and
maturing within six months of the date of acceptance;
(e) investments in certificates of deposit issued by and time
deposits with any commercial bank (whether domestic or foreign)
having capital and surplus in excess of $10,000,000 but less than
$50,000,000, which deposits shall not exceed $500,000 in the
aggregate;
29
(f) investments in repurchase obligations with a term of not
more than seven (7) days for underlying securities of the types
described in subsection (a) above entered into with any bank meeting
the qualifications specified in subsection (d) above, PROVIDED all
such agreements require physical delivery of the securities securing
such repurchase agreement, except those delivered through the Federal
Reserve Book Entry System;
(g) investments in money market funds that invest solely, and
which are restricted by their respective charters to invest solely,
in investments of the type described in the immediately preceding
subsections (a), (b), (c) and (d) above;
(h) endorsements of negotiable instruments for collection in
the ordinary course of business;
(i) Loans and advances to employees and relocation companies
in the ordinary course of business not to exceed $30,000,000 in the
aggregate at any one time outstanding, PROVIDED that loans and
advances to current or new employees that are made in lieu of a
signing bonus or similar compensation or part of a retention
agreement shall not be considered a loan or advance for purposes of
this Section 7.14 so long as the terms of such loan or advance
provide that such loan or advance may be forgiven and converted to
compensation upon meeting certain performance or retention objectives
by such employee;
(j) Investments in existence on the date hereof and described
on Schedule 7.14 hereof;
(k) Acquisitions or Investments in a line of business related
to that of the Parent and its Subsidiaries and Investments and
commitments to make Investments, including guarantees of such
commitments and guarantees of the commitments of employees of the
Parent or any Subsidiary, directly and indirectly through
Subsidiaries and other Persons in real estate and real estate related
assets, including notes and other securities, PROVIDED that (i) no
Default or Event of Default exists or would exist after giving effect
to such Acquisition or Investment, (ii) in the case of an
Acquisition, (I) the Board of Directors or other governing body or
the holders of 100% of the equity interests of such Person whose
Property, or Voting Stock or other interests in which, are being so
acquired has approved the terms of such Acquisition, and (II) the
portion of the purchase price for any such Acquisition paid by the
Parent or any Subsidiary in cash, including the aggregate principal
amount of all liabilities assumed in connection with such
Acquisitions other than Staubach Holdings Inc., shall not exceed
$100,000,000, and (iii) in the case of Investments not constituting
Acquisitions, such Investment funded in cash together with all other
Investments funded in cash not constituting Acquisitions (excluding
up to $75,000,000 of Investments in the aggregate that are in the
form of a Guaranty) permitted under this subsection (k) since the
"Effective Date" of the Multicurrency Credit Agreement reduced by the
amount of proceeds of the disposition of all or any part of any
Investments existing on the "Effective Date" of the Multicurrency
Credit Agreement or acquired thereafter does not exceed $300,000,000
in aggregate purchase price; PROVIDED that if the aggregate purchase
price for any Acquisition or Investment by the Parent or any
Subsidiary in any one Person other than Staubach Holdings Inc.
exceeds $100,000,000 the Parent shall have received the prior written
consent of the Required Banks; or
(l) Performance guarantees (other than guarantees of the
payment of Indebtedness), performance and surety bonds and
environmental, "bad boy" and completion guarantees provided by the
Borrower, the Parent, or any Subsidiary.
30
In determining the amount of Investments permitted under this Section
7.14, Investments shall always be taken at the original cost thereof
(regardless of any subsequent appreciation or depreciation therein), and
Investments in the form of loans and advances shall be taken at the
principal amount thereof then remaining unpaid, and Investments in the form
of guarantees (including liabilities as a general partner) shall be taken
at the lesser of (i) amount of obligations guaranteed and (ii) the fair
market value of all the assets of such guarantor or general partner. A
change in the form of an Investment (e.g. from an interest as a limited
partner to making a direct loan to such limited partnership or a change in
the form of an entity from a limited partnership to a corporation) shall
not be regarded as a further Investment except to the extent the Parent or
any of its Subsidiaries invests any further money.
SECTION 7.15. CONSOLIDATED NET WORTH. The Parent will at all times
maintain a Consolidated Net Worth of not less than the Minimum Required
Amount. For purposes of this section, the "Minimum Required Amount" shall
mean (i) $600,000,000 during the Annual Measurement Period commencing on
December 31, 2006, and (ii) during each Annual Measurement Period
thereafter, an amount equal to the sum of (x) the Minimum Required Amount
for the immediately preceding Annual Measurement Period PLUS (y) an amount
equal to 50% of the cumulative positive Consolidated Net Income earned in
the fiscal year completed during the immediately preceding Annual
Measurement Period (but without subtraction for any negative Consolidated
Net Income for any such fiscal year); PROVIDED, HOWEVER, in each case such
Minimum Required Amount shall increase on the date of the issuance of
capital securities (other than in connection with the Parent's Stock
Compensation Program, Employee Stock Purchase Plan, Stock Award and
Incentive Plan and any similar programs or plans) by the Parent by an
amount equal to 100% of (A) the Net Cash Proceeds of such issuance and (B)
the portion of the purchase price for any Acquisition paid by the Parent or
any Subsidiary with the issuance of capital securities. As used herein the
term "Annual Measurement Period" shall mean each period commencing on
December 31 of a calendar year and ending on December 30 of the immediately
subsequent calendar year.
SECTION 7.16. FUNDED DEBT TO ADJUSTED EBITDA. The Parent will as of
the last day of each calendar quarter maintain the Total Funded Debt to
Adjusted EBITDA Ratio at not more than 3.25 to 1.00.
SECTION 7.17. INTEREST COVERAGE RATIO. The Parent will as of the
last day of each calendar quarter maintain an Interest Coverage Ratio of
not less than 2.00 to 1.00.
SECTION 7.18. DIVIDENDS AND OTHER SHAREHOLDER DISTRIBUTIONS. The
Parent shall only declare or pay dividends or make a distribution (other
than dividends and distributions payable solely in its capital stock) of
any kind (including by redemption or purchase other than purchases of
outstanding capital stock in connection with the Parent's Stock
Compensation Program, Employee Stock Purchase Plan, Stock Award and
Incentive Plan and any similar programs or plans) on its outstanding
capital stock, if no Default or Event of Default exists prior to or would
result after giving effect to such action.
SECTION 7.19. INDEBTEDNESS. The Parent will not, and will not
permit any of its Restricted Subsidiaries to, have outstanding at any time
any Indebtedness other than:
(a) The Obligations of the Borrower and Guarantors owing to
the (i) Banks and Administrative Agent hereunder, (ii) the "Banks"
and "Administrative Agent" under the Multicurrency Credit Agreement
and (iii) the obligations of the Borrower and Guarantors owing in
connection with any other term loan facility contemplated by
Section 1.15 of the Multicurrency Credit Agreement;
31
(b) Indebtedness of (i) the Borrower to the Parent or any
Subsidiary, (ii) any Subsidiary to the Parent or any other Subsidiary
and (iii) the Parent to any Subsidiary;
(c) Capitalized Lease Obligations in an aggregate principal
amount outstanding not to exceed $25,000,000 on any date of
determination;
(d) Subordinated Indebtedness;
(e) Investments (as defined in Section 7.14) permitted
pursuant to Section 7.14 in the form of Indebtedness;
(f) Guaranties by the Parent and its Subsidiaries of
obligations of the Parent and its Subsidiaries which obligations are
not prohibited under this Agreement;
(g) Indebtedness of non-U.S. domiciled Subsidiaries in an
aggregate principal amount outstanding not to exceed the U.S. Dollar
equivalent of $50,000,000 on any date of determination;
(h) Indebtedness not otherwise permitted by this Section 7.19
of not more than $300,000,000 in aggregate principal amount
outstanding on any date of determination for the Parent and its
Restricted Subsidiaries; and
(i) Indebtedness of the Parent and the Guarantors owing to
the former shareholders of Staubach Holdings, Inc. representing
deferred and earn-out obligations in an aggregate principal amount
outstanding not to exceed $525,000,000 MINUS the principal amount of
any payment thereon.
SECTION 7.20. TRANSACTIONS WITH AFFILIATES. The Parent will not,
and will not permit any of its Subsidiaries to, enter into or be a party to
any material transaction or arrangement (where "material" means material
for the Parent and its Subsidiaries taken as a whole) with any Affiliate of
such Person (other than the Parent or any of its Subsidiaries), including
without limitation, the purchase from, sale to or exchange of Property
with, any merger or consolidation with or into, or the rendering of any
service by or for, any Affiliate, except in the ordinary course of and
pursuant to the reasonable requirements of the Parent's or such
Subsidiary's business and upon fair and reasonable terms no less favorable
to the Parent or such Subsidiary than could be obtained in a comparable
arm's-length transaction with a Person other than an Affiliate.
SECTION 7.21. COMPLIANCE WITH LAWS. Without limiting any of the
other covenants of the Parent in this Section 7, the Parent will, and will
cause each of its Subsidiaries to, conduct its business, and otherwise be,
in compliance with all applicable laws, regulations, ordinances and orders
of any governmental or judicial authorities; PROVIDED, HOWEVER, that
neither the Parent nor any Subsidiary of the Parent shall be required to
comply with any such law, regulation, ordinance or order if (x) it shall be
contesting such law, regulation, ordinance or order in good faith by
appropriate proceedings and reserves in conformity with GAAP have been
provided therefor on the books of the Parent or such Subsidiary, as the
case may be, or (y) the failure to comply therewith is not reasonably
expected to have, in the aggregate, a Material Adverse Effect.
32
SECTION 7.22. ADDITIONAL GUARANTORS. If on the last day of each
calendar quarter the total liabilities of the non-Guarantor Subsidiaries of
the Parent equal or exceed 35% of the book value of the total consolidated
assets of the Parent and its Subsidiaries, then the Parent will, within
fifteen (15) Business Days of the date on which the balance sheet as of
such date is required to be delivered pursuant to Section 7.6(a)(i) or
Section 7.6(a)(ii), cause an additional Subsidiary or additional
Subsidiaries to become a Guarantor or Guarantors hereunder such that the
total liabilities of the non-Guarantor Subsidiaries of the Parent are less
than 35% of the book value of the total consolidated assets of the Parent
and its Subsidiaries. In addition, if on the last day of any calendar
quarter any Subsidiary of the Parent which is not a Guarantor accounts for
either (i) 10% or more of the Adjusted EBITDA of the Parent for the 12-
month period then ended (other than as a result of a one time, non-
recurring or extraordinary event reasonably acceptable to the
Administrative Agent) or (ii) 10% or more of the book value of the total
consolidated assets of the Parent and its Subsidiaries, then the Parent
will, within fifteen (15) Business Days of the date on which the balance
sheet as of such date is required to be delivered pursuant to
Section 7.6(a)(i) or Section 7.6(a)(ii), cause such Subsidiary to become a
Guarantor hereunder; PROVIDED that, for any non-Wholly Owned Subsidiary of
the Parent, the Parent shall exclude from the Adjusted EBITDA and book
value of assets calculations for that Subsidiary, the proportion of
Adjusted EBITDA and book value of assets attributable to the interests in
that Subsidiary not owned, directly or indirectly, by Parent. No later
than August 16, 2008, the Parent shall cause Xxxxx Xxxx LaSalle New
England, LLC to become a Guarantor hereunder. In addition, the Parent
shall cause each "Guarantor" under the Multicurrency Credit Agreement to
become a Guarantor hereunder. Together with the delivery of any Additional
Guarantor Supplement, the Parent shall deliver and shall cause each such
Subsidiary to deliver corporate resolutions, opinions of counsel, and such
other corporate documentation as the Administrative Agent shall reasonably
request. Upon any such Subsidiary becoming a Guarantor hereunder the
Parent shall provide to the Administrative Agent an updated Schedule 5.2.
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.
SECTION 8.1. EVENTS OF DEFAULT. Any one or more of the following
shall constitute an Event of Default:
(a) default (x) in the payment when due of the principal
amount of any Loan or (y) for a period of three (3) days in the
payment when due of interest or of any other Obligation;
(b) default by the Borrower, the Parent or any Subsidiary in
the observance or performance of any covenant set forth in the first
sentence of Section 7.1, Section 7.6(c), 7.9 through 7.12, or 7.14
through 7.19 hereof;
(c) default by the Borrower, the Parent or any Subsidiary in
the observance or performance of any provision hereof or of any other
Credit Document not mentioned in (a) or (b) above, which is not
remedied within thirty (30) days after notice thereof to the Parent
by the Administrative Agent (acting at the request of any Bank);
(d) (i) failure to pay when due Indebtedness in an aggregate
principal amount of $10,000,000 or more of the Borrower, Parent or
any Subsidiary or (ii) default shall occur under the Multicurrency
Credit Agreement or one or more indentures, agreements or other
instruments under which any Indebtedness of the Borrower, the Parent
or any Subsidiary in an aggregate principal amount of $10,000,000 or
more is outstanding and such default shall continue for a period of
time sufficient to permit the holder or beneficiary of such
Indebtedness or a trustee therefor to cause the acceleration of the
maturity of any such Indebtedness or any mandatory unscheduled
prepayment, purchase or funding thereof;
33
(e) any representation or warranty made herein or in any
other Credit Document by the Borrower, the Parent or any Subsidiary,
or in any statement or certificate furnished pursuant hereto or
pursuant to any other Credit Document by the Borrower, the Parent or
any Subsidiary, or in connection with any Credit Document, shall be
untrue in any material respect as of the date of the issuance or
making, or deemed making or issuance, thereof;
(f) the Borrower, the Parent or any Subsidiary shall (i) have
entered involuntarily against it an order for relief under the United
States Bankruptcy Code, as amended, or any analogous action is taken
under any other applicable law relating to bankruptcy or insolvency,
(ii) fail to pay, or admit in writing its inability to pay, its debts
generally as they become due, (iii) make an assignment for the
benefit of creditors, (iv) apply for, seek, consent to, or acquiesce
in, the appointment of a receiver, custodian, trustee, examiner,
liquidator or similar official for it or any substantial part of its
Property, (v) institute any proceeding seeking to have entered
against it an order for relief under the United States Bankruptcy
Code, as amended, to adjudicate it insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors or fail within the
time allowed therefor to file an answer or other pleading denying the
material allegations of any such proceeding filed against it,
(vi) take any corporate action (such as the passage by the board of
directors of a resolution) in furtherance of any matter described in
parts (i)-(v) above, or (vii) fail to contest in good faith any
appointment or proceeding described in Section 8.1(g) hereof;
(g) a custodian, receiver, trustee, examiner, liquidator or
similar official shall be appointed for the Borrower, the Parent or
any Subsidiary or any substantial part of any of their Property, or a
proceeding described in Section 8.1(f)(v) shall be instituted against
the Borrower, the Parent or any Subsidiary, and such appointment
continues undischarged or such proceeding continues undismissed or
unstayed for a period of sixty (60) days;
(h) the Borrower, the Parent or any Subsidiary shall fail
within thirty (30) days to pay, bond or otherwise discharge any
judgment or order for the payment of money in excess of $5,000,000,
which is not stayed on appeal or otherwise being appropriately
contested in good faith in a manner that stays execution thereon;
(i) the Parent or any other member of the Controlled Group
shall fail to pay when due an amount or amounts aggregating in excess
of $5,000,000 which it shall have become liable to pay to the PBGC or
to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans having aggregate Unfunded Vested Liabilities in excess
of $5,000,000 (collectively, a "Material Plan") shall be filed under
Title IV of ERISA by the Parent or any Subsidiary or any other member
of the Controlled Group, any plan administrator or any combination of
the foregoing; or the PBGC shall institute proceedings under Title IV
of ERISA to terminate or to cause a trustee to be appointed to
administer any Material Plan or a proceeding shall be instituted by a
fiduciary of any Material Plan against the Parent or any other member
of the Controlled Group to enforce Section 515 or 4219(c)(5) of ERISA
and such proceeding shall not have been dismissed within thirty (30)
days thereafter; or a condition shall exist by reason of which the
PBGC would be entitled to obtain a decree adjudicating that any
Material Plan must be terminated;
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(j) the Borrower, the Parent or any Subsidiary, or any Person
acting on behalf of the Borrower, the Parent or a Subsidiary, or any
governmental authority challenges the validity of any Credit Document
or the Borrower's, the Parent's or a Subsidiary's obligations
thereunder or any Credit Document ceases to be in full force and
effect; or
(k) a Change of Control shall have occurred.
SECTION 8.2. NON-BANKRUPTCY DEFAULTS. When any Event of Default
other than those described in subsections (f) or (g) of Section 8.1 hereof
has occurred and is continuing, the Administrative Agent shall, by written
notice to the Parent: (a) if so directed by the Required Banks, terminate
all obligations of the Banks hereunder on the date stated in such notice
(which may be the date thereof); and (b) if so directed by the Required
Banks, declare the principal of and the accrued interest on all outstanding
Loans and all other amounts due under the Credit Documents to be forthwith
due and payable and thereupon all outstanding Loans, including both
principal and interest thereon, shall be and become immediately due and
payable together with all other amounts payable under the Credit Documents
without further demand, presentment, protest or notice of any kind. The
Administrative Agent, after giving notice to the Borrower pursuant to
Section 8.1(c) or this Section 8.2, shall also promptly send a copy of such
notice to the other Banks, but the failure to do so shall not impair or
annul the effect of such notice.
SECTION 8.3. BANKRUPTCY DEFAULTS. When any Event of Default
described in subsections (f) or (g) of Section 8.1 hereof has occurred and
is continuing, then all outstanding Loans shall immediately become due and
payable together with all other amounts payable under the Credit Documents
without presentment, demand, protest or notice of any kind, the obligation
of the Banks to extend further credit pursuant to any of the terms hereof
shall immediately terminate.
SECTION 8.4. NOTICE OF DEFAULT. The Administrative Agent shall give
notice to the Borrower under Section 8.1(c) hereof promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks
thereof.
SECTION 8.5. EXPENSES. The Borrower agrees to pay to the
Administrative Agent, and each Bank, and any other holder of any Obligation
outstanding hereunder, all expenses reasonably incurred or paid by the
Administrative Agent, and such Bank or any such holder, including
reasonable attorneys' fees and court costs, in connection with any Default
or Event of Default by the Borrower hereunder or in connection with the
enforcement of any of the Credit Documents (including all such costs and
expenses incurred in connection with any proceeding under the United States
Bankruptcy Code involving the Parent or any of its Subsidiary as a debtor
thereunder.
SECTION 9. CHANGE IN CIRCUMSTANCES.
SECTION 9.1. CHANGE OF LAW. Notwithstanding any other provisions of
this Agreement or any Note, if at any time after the date hereof any change
in applicable law or regulation or in the interpretation thereof makes it
unlawful for any Bank to make or continue to maintain Eurodollar Loans or
to perform its obligations as contemplated hereby, such Bank shall promptly
give notice thereof to the Borrower and such Bank's obligations to make or
maintain Eurodollar Loans under this Agreement shall terminate until it is
no longer unlawful for such Bank to make or maintain Eurodollar Loans. The
Borrower shall prepay on demand the outstanding principal amount of any
such affected Eurodollar Loans, together with all interest accrued thereon
at a rate per annum equal to the interest rate applicable to such Loan;
PROVIDED, HOWEVER, subject to all of the terms and conditions of this
Agreement, the Borrower may then elect to borrow the principal amount of
the affected Eurodollar Loans from such Bank by means of Domestic Rate
Loans from such Bank, which Domestic Rate Loans shall not be made ratably
by the Banks but only from such affected Bank.
35
SECTION 9.2. UNAVAILABILITY OF DEPOSITS OR INABILITY TO ASCERTAIN,
OR INADEQUACY OF, LIBOR. If on or prior to the first day of any Interest
Period for any Borrowing of Eurodollar Loans:
(a) the Administrative Agent determines that deposits in U.S.
Dollars (in the applicable amounts) are not being offered to it in
the eurodollar interbank market for such Interest Period, or that by
reason of circumstances affecting the interbank eurodollar market
adequate and reasonable means do not exist for ascertaining the
applicable LIBOR, or
(b) the Required Banks reasonably determine and so advise the
Administrative Agent that LIBOR as reasonably determined by the
Administrative Agent will not adequately and fairly reflect the cost
to such Banks of funding their Eurodollar Loans for such Interest
Period,
then the Administrative Agent shall forthwith give notice thereof to the
Borrower and the Banks, whereupon until the Administrative Agent notifies
the Borrower that the circumstances giving rise to such suspension no
longer exist, the obligations of the Banks to make Eurodollar Loans in the
currency so affected shall be suspended; PROVIDED that such suspension
shall have no effect on any Eurodollar Loan then outstanding.
SECTION 9.3. INCREASED COST AND REDUCED RETURN.
(a) If, on or after the date hereof, the adoption of any applicable
law, rule or regulation, or any change therein, or any change in the
interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office)
with any request or directive (whether or not having the force of law but,
if not having the force of law, compliance with which is customary in the
relevant jurisdiction) of any such authority, central bank or comparable
agency:
(i) shall subject any Bank (or its Lending Office) to any
tax, duty or other charge with respect to its Eurodollar Loans, its
Notes, or its obligation to make Eurodollar Loans, or shall change
the basis of taxation of payments to any Bank (or its Lending Office)
of the principal of or interest on its Eurodollar Loans, or any other
amounts due under this Agreement in respect of its Eurodollar Loans,
or its obligation to make Eurodollar Loans (except for changes in the
rate of tax on the overall net income or profits of such Bank (or its
Lending Office) imposed by the jurisdiction in which such Bank (or
its Lending Office) is incorporated or in which such Bank's principal
executive office or (Lending Office) is located); or
(ii) shall impose, modify or deem applicable any reserve,
special deposit, capital or similar requirement (including, without
limitation, any such requirement imposed by the Board of Governors of
the Federal Reserve System, but excluding with respect to any
Eurodollar Loans any such requirement included in an applicable
Eurodollar Reserve Percentage) against assets of, deposits with or
for the account of, or credit extended by, any Bank (or its Lending
Office) or shall impose on any Bank (or its Lending Office) or on the
interbank market any other condition affecting its Eurodollar Loans,
its Notes, or its obligation to make Eurodollar Loans;
36
and the result of any of the foregoing is to increase the cost to such Bank
(or its Lending Office) of making or maintaining any Eurodollar Loan, or to
reduce the amount of any sum received or receivable by such Bank (or its
Lending Office) under this Agreement or under its Notes with respect
thereto, by an amount deemed by such Bank to be material, then, within
fifteen (15) days after demand by such Bank (with a copy to the
Administrative Agent), the Borrower shall be obligated to pay to such Bank
such additional amount or amounts as will compensate such Bank for such
increased cost or reduction; PROVIDED, HOWEVER, that such Bank shall
promptly notify the Borrower of an event which might cause it to seek
compensation, and the Borrower shall be obligated to pay only such
compensation which is incurred or which arises after the date ninety (90)
days prior to the date such notice is given. In the event any law, rule,
regulation or interpretation described above is revoked, declared invalid
or inapplicable or is otherwise rescinded, and as a result thereof a Bank
is determined to be entitled to a refund from the applicable authority for
any amount or amounts which were paid or reimbursed by the Borrower to such
Bank hereunder, such Bank shall refund such amount or amounts to the
Borrower without interest.
(b) Each Bank that determines to seek compensation under this
Section 9.3 shall notify the Borrower and the Administrative Agent of the
circumstances that entitle the Bank to such compensation pursuant to this
Section 9.3 and will designate a different Lending Office if such
designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the reasonable judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate of any Bank claiming
compensation under this Section 9.3 and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
SECTION 9.4. LENDING OFFICES. Each Bank may, at its option, elect
to make its Loans hereunder at the branch, office or affiliate specified on
the appropriate signature page hereof (each a "Lending Office") for each
type of Loan available hereunder or at such other of its branches, offices
or affiliates as it may from time to time elect and designate in a written
notice to the Borrower and the Administrative Agent.
SECTION 9.5. DISCRETION OF BANK AS TO MANNER OF FUNDING.
Notwithstanding any other provision of this Agreement, each Bank shall be
entitled to fund and maintain its funding of all or any part of its Loans
in any manner it sees fit, it being understood, however, that for the
purposes of this Agreement all determinations hereunder shall be made as if
each Bank had actually funded and maintained each Eurodollar Loan through
the purchase of deposits in the eurodollar interbank market having a
maturity corresponding to such Loan's Interest Period and bearing an
interest rate equal to LIBOR for such Interest Period.
SECTION 10. THE ADMINISTRATIVE AGENT.
SECTION 10.1. APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
Each Bank hereby appoints Bank of Montreal as the Administrative Agent
under the Credit Documents and hereby authorizes the Administrative Agent
to take such action as Administrative Agent on its behalf and to exercise
such powers under the Credit Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto. The Banks expressly agree that the
Administrative Agent is not acting as a fiduciary of the Banks in respect
of the Credit Documents, the Borrower or otherwise except as expressly set
forth herein, and nothing herein or in any of the other Credit Documents
shall result in any duties or obligations on the Administrative Agent or
any of the Banks except as expressly set forth herein.
37
SECTION 10.2. ADMINISTRATIVE AGENT AND ITS AFFILIATES. The
Administrative Agent shall have the same rights and powers under this
Agreement and the other Credit Documents as any other Bank and may exercise
or refrain from exercising the same as though it were not the
Administrative Agent, and the Administrative Agent and its affiliates may
accept deposits from, lend money to, and generally engage in any kind of
business with the Borrower or any Affiliate of the Borrower as if it were
not the Administrative Agent under the Credit Documents. The term "Bank"
as used herein and in all other Credit Documents, unless the context
otherwise clearly requires, includes the Administrative Agent in its
individual capacity as a Bank. References in Section 1 hereof to the
Administrative Agent's Loans, or to the amount owing to the Administrative
Agent for which an interest rate is being determined, refer to the
Administrative Agent in its individual capacity as a Bank.
SECTION 10.3. ACTION BY ADMINISTRATIVE AGENT. If the Administrative
Agent receives from the Parent a written notice of an Event of Default
pursuant to Section 7.6(c) hereof, the Administrative Agent shall promptly
give each of the Banks written notice thereof. The obligations of the
Administrative Agent under the Credit Documents are only those expressly
set forth therein. Without limiting the generality of the foregoing, the
Administrative Agent shall not be required to take any action hereunder
with respect to any Default or Event of Default, except as expressly
provided in Sections 8.2 and 8.4. In no event, however, shall the
Administrative Agent be required to take any action in violation of
applicable law or of any provision of any Credit Document, and the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder or under any other Credit Document unless it
shall be first indemnified to its reasonable satisfaction by the Banks
against any and all costs, expense, and liability which may be incurred by
it by reason of taking or continuing to take any such action. The
Administrative Agent shall be entitled to assume that no Default or Event
of Default exists unless notified to the contrary by a Bank, the Parent or
the Borrower. In all cases in which this Agreement and the other Credit
Documents do not require the Administrative Agent to take certain actions,
the Administrative Agent shall be fully justified in using its discretion
in failing to take or in taking any action hereunder and thereunder. Any
instructions of the Required Banks, or of any other group of Banks called
for under the specific provisions of the Credit Documents, in each case,
shall be binding upon all the Banks and the holders of the Obligations.
SECTION 10.4. CONSULTATION WITH EXPERTS. The Administrative Agent
may consult with legal counsel, independent public accountants and other
experts selected by it and shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the advice of
such counsel, accountants or experts.
SECTION 10.5. LIABILITY OF ADMINISTRATIVE AGENT; CREDIT DECISION.
Neither the Administrative Agent nor any of its directors, officers,
agents, or employees shall be liable for any action taken or not taken by
it in connection with the Credit Documents (i) with the consent or at the
request of the Required Banks or all of the Banks, as applicable, or
(ii) in the absence of its own gross negligence or willful misconduct.
Neither the Administrative Agent nor any of its directors, officers, agents
or employees shall be responsible for or have any duty to ascertain,
inquire into or verify (i) any statement, warranty or representation made
in connection with this Agreement, any other Credit Document or any Credit
Event; (ii) the performance or observance of any of the covenants or
agreements of the Borrower or any Guarantor contained herein or in any
other Credit Document; (iii) the satisfaction of any condition specified in
Section 6 hereof, except receipt of items required to be delivered to the
Administrative Agent; or (iv) the validity, effectiveness, genuineness,
enforceability, perfection, value, worth or collectibility hereof or of any
38
other Credit Document or of any other documents or writing furnished in
connection with any Credit Document; and the Administrative Agent makes no
representation of any kind or character with respect to any such matter
mentioned in this sentence. The Administrative Agent may execute any of
its duties under any of the Credit Documents by or through employees,
agents, and attorneys-in-fact and shall not be answerable to the Banks, the
Borrower, or any Guarantor or any other Person for the default or
misconduct of any such agents or attorneys-in-fact selected with reasonable
care. The Administrative Agent shall not incur any liability by acting in
reliance upon any notice, consent, certificate, other document or statement
(whether written or oral) reasonably believed by it to be genuine or to be
sent by the proper party or parties. In particular and without limiting
any of the foregoing, the Administrative Agent shall have no responsibility
for confirming the accuracy of any Compliance Certificate or other document
or instrument received by it under the Credit Documents. The
Administrative Agent may treat the payee of any Obligation as the holder
thereof until written notice of transfer shall have been filed with the
Administrative Agent signed by such payee in form satisfactory to the
Administrative Agent. Each Bank acknowledges that it has independently and
without reliance on the Administrative Agent or any other Bank, and based
upon such information, investigations and inquiries as it deems
appropriate, made its own credit analysis and decision to extend credit to
the Borrower in the manner set forth in the Credit Documents. It shall be
the responsibility of each Bank to keep itself informed as to the
creditworthiness of the Borrower and the Guarantors, and the Administrative
Agent shall have no liability to any Bank with respect thereto.
SECTION 10.6. INDEMNITY. The Banks shall ratably, in accordance
with their respective Percentages, indemnify and hold the Administrative
Agent, and its directors, officers, employees, agents and representatives
harmless from and against any liabilities, losses, costs or expenses
suffered or incurred by it under any Credit Document or in connection with
the transactions contemplated thereby, regardless of when asserted or
arising, except to the extent they are promptly reimbursed for the same by
the Borrower and except to the extent that any event giving rise to a claim
was caused by the gross negligence or willful misconduct of the party
seeking to be indemnified. The obligations of the Banks under this
Section 10.6 shall survive termination of this Agreement. The
Administrative Agent shall be entitled to offset amounts received for the
account of a Bank under this Agreement against unpaid amounts due from such
Bank to the Administrative Agent hereunder (whether as fundings of
participations, indemnities or otherwise), but shall not be entitled to
offset against amounts owed to the Administrative Agent by any Bank arising
outside of this Agreement and the other Credit Documents.
SECTION 10.7. RESIGNATION OF ADMINISTRATIVE AGENT AND SUCCESSOR
ADMINISTRATIVE AGENT. The Administrative Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower. Upon any such
resignation of the Administrative Agent, the Required Banks shall have the
right to appoint a successor Administrative Agent with the consent of the
Borrower; PROVIDED that the Borrower's consent shall not be required upon
the occurrence and during the continuance of an Event of Default. If no
successor Administrative Agent shall have been so appointed by the Required
Banks, and shall have accepted such appointment, within thirty (30) days
after the retiring Administrative Agent's giving of notice of resignation,
then the retiring Administrative Agent may, on behalf of the Banks and with
the consent of the Borrower, appoint a successor Administrative Agent,
which shall be any Bank hereunder or any commercial bank organized under
the laws of the United States of America or of any State thereof and having
a combined capital and surplus of at least $200,000,000. Upon the
acceptance of its appointment as the Administrative Agent hereunder, such
successor Administrative Agent shall thereupon succeed to and become vested
with all the rights and duties of the retiring or removed Administrative
Agent under the Credit Documents, and the retiring Administrative Agent
shall be discharged from its duties and obligations thereunder. After any
retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this Section 10 and all protective provisions of
the other Credit Documents shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent.
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SECTION 10.8. DESIGNATION OF ADDITIONAL AGENTS. The Administrative
Agent shall have the continuing right, for purposes hereof, at any time and
from time to time to designate one or more of the Banks (and/or its or
their Affiliates) as "syndication agents," "documentation agents," "book
runners," "lead arrangers," "arrangers," or other designations for purposes
hereto, but such designation shall have no substantive effect, and such
Banks and their Affiliates shall have no additional powers, duties or
responsibilities as a result thereof.
SECTION 11. THE GUARANTEES.
SECTION 11.1. THE GUARANTEES. To induce the Banks to provide the
credits described herein and in consideration of benefits expected to
accrue to each Guarantor by reason of the Commitments and for other good
and valuable consideration, receipt of which is hereby acknowledged, each
Guarantor hereby unconditionally and irrevocably guarantees jointly and
severally to the Administrative Agent, the Banks, and each other holder of
an Obligation, the due and punctual payment of all present and future
indebtedness of the Borrower evidenced by or arising out of the Credit
Documents, including, but not limited to, the due and punctual payment of
principal of and interest on the Loans, and the due and punctual payment of
all other Obligations now or hereafter owed by the Borrower under the
Credit Documents as and when the same shall become due and payable, whether
at stated maturity, by acceleration or otherwise, according to the terms
hereof and thereof. In case of failure by the Borrower or other obligor
punctually to pay any indebtedness or other Obligations guaranteed hereby,
each Guarantor hereby unconditionally agrees jointly and severally to make
such payment or to cause such payment to be made punctually as and when the
same shall become due and payable, whether at stated maturity, by
acceleration or otherwise, and as if such payment were made by the
Borrower.
SECTION 11.2. GUARANTEE UNCONDITIONAL. The obligations of each
Guarantor as a guarantor under this Section 11 shall be unconditional and
absolute and, without limiting the generality of the foregoing, shall not
be released, discharged or otherwise affected by:
(a) any extension, renewal, settlement, compromise, waiver or
release in respect of any obligation of the Borrower or of any other
Guarantor under this Agreement or any other Credit Document or by
operation of law or otherwise;
(b) any modification or amendment of or supplement to this
Agreement or any other Credit Document;
(c) any change in the corporate existence, structure or
ownership of, or any insolvency, bankruptcy, reorganization or other
similar proceeding affecting, the Borrower, any other Guarantor, or
any of their respective assets, or any resulting release or discharge
of any obligation of the Borrower or of any other Guarantor contained
in any Credit Document;
(d) the existence of any claim, set-off or other rights which
the Guarantor may have at any time against the Administrative Agent,
any Bank or any other Person, whether or not arising in connection
herewith;
(e) any failure to assert, or any assertion of, any claim or
demand or any exercise of, or failure to exercise, any rights or
remedies against the Borrower, any other Guarantor or any other
Person or Property;
(f) any application of any sums by whomsoever paid or
howsoever realized to any obligation of the Borrower, regardless of
what obligations of the Borrower remain unpaid;
40
(g) any invalidity or unenforceability relating to or against
the Borrower or any other Guarantor for any reason of this Agreement
or of any other Credit Document or any provision of applicable law or
regulation purporting to prohibit the payment by the Borrower or any
other Guarantor of the principal of or interest on any Loan or any
other amount payable by it under the Credit Documents; or
(h) any other act or omission to act or delay of any kind by
the Administrative Agent, any Bank, or any other Person or any other
circumstance whatsoever that might, but for the provisions of this
paragraph, constitute a legal or equitable discharge of the
obligations of a Guarantor under this Section 11 or the Borrower
under this Agreement.
SECTION 11.3. DISCHARGE ONLY UPON PAYMENT IN FULL; REINSTATEMENT IN
CERTAIN CIRCUMSTANCES. Each Guarantor's obligations under this Section 11
shall remain in full force and effect until the Commitments are terminated
and the principal of and interest on the Obligations and all other amounts
payable by the Borrower under this Agreement and all other Credit Documents
shall have been paid in full. If at any time any payment of the principal
of or interest on any Obligation or any other amount payable by the
Borrower under the Credit Documents is rescinded or must be otherwise
restored or returned upon the insolvency, bankruptcy or reorganization of
the Borrower or of a Guarantor, or otherwise, each Guarantor's obligations
under this Section 11 with respect to such payment shall be reinstated at
such time as though such payment had become due but had not been made at
such time.
SECTION 11.4. WAIVERS.
(a) GENERAL. Each Guarantor irrevocably waives acceptance hereof,
presentment, demand, protest and any notice not provided for herein, as
well as any requirement that at any time any action be taken by the
Administrative Agent, any Bank, or any other Person against the Borrower,
another Guarantor or any other Person.
(b) SUBROGATION AND CONTRIBUTION. Unless and until the Obligations
have been fully paid and satisfied and the Commitments have terminated,
each Guarantor hereby irrevocably waives any claim or other right it may
now or hereafter acquire against the Borrower or any other Guarantor that
arises from the existence, payment, performance or enforcement of such
Guarantor's obligations under this Section 11 or any other Credit Document,
including, without limitation, any right of subrogation, reimbursement,
exoneration, contribution, indemnification, or any right to participate in
any claim or remedy of the Administrative Agent, any Bank, or any other
holder of an Obligation against the Borrower or any other Guarantor whether
or not such claim, remedy or right arises in equity or under contract,
statute or common law, including, without limitation, the right to take or
receive from the Borrower or any other Guarantor directly or indirectly, in
cash or other property or by set-off or in any other manner, payment or
security on account of such claim or other right. If any amount shall be
paid to a Guarantor on account of such subrogation rights at any time prior
to the later of (x) the payment in full of the Obligations and all other
amounts payable by the Borrower hereunder and the other Credit Documents
and (y) the termination of the Commitments, such amount shall be held in
trust for the benefit of the Administrative Agent and the Banks (and their
Affiliates) and shall forthwith be paid to the Administrative Agent for the
benefit of the Banks (and their Affiliates) or be credited and applied upon
the Obligations, whether matured or unmatured, in accordance with the terms
of this Agreement.
SECTION 11.5. LIMIT ON RECOVERY. Notwithstanding any other
provision hereof, the right to recovery of the holders of the Obligations
against each Guarantor under this Section 11 shall not exceed $1.00 less
than the lowest amount which would render such Guarantor's obligations
under this Section 11 void or voidable under applicable law, including
without limitation fraudulent conveyance law.
41
SECTION 11.6. STAY OF ACCELERATION. If acceleration of the time for
payment of any amount payable by the Borrower under this Agreement or any
other Credit Document is stayed upon the insolvency, bankruptcy or
reorganization of the Borrower, all such amounts otherwise subject to
acceleration under the terms of this Agreement or the other Credit
Documents shall nonetheless be payable jointly and severally by the
Guarantors hereunder forthwith on demand by the Administrative Agent made
at the request of the Required Banks.
SECTION 11.7. BENEFIT TO GUARANTORS. The Borrower and the
Guarantors are engaged in related businesses and integrated to such an
extent that the financial strength and flexibility of the Borrower has a
direct impact on the success of each Guarantor. Each Guarantor will derive
substantial direct and indirect benefit from the extensions of credit
hereunder.
SECTION 11.8. GUARANTOR COVENANTS. Each Guarantor shall take such
action as the Borrower is required by this Agreement to cause such
Guarantor to take, and shall refrain from taking such action as the
Borrower is required by this Agreement to prohibit such Guarantor from
taking.
SECTION 12. MISCELLANEOUS.
SECTION 12.1. PAYMENTS FREE OF WITHHOLDING TAXES. Except as
otherwise required by law, each payment by the Borrower and each Guarantor
under this Agreement or the other Credit Documents shall be made without
withholding for or on account of any present or future taxes (other than
overall net income taxes on the recipient) imposed by or within the
jurisdiction in which the Borrower or such Guarantor is domiciled, any
jurisdiction from which the Borrower or such Guarantor makes any payment,
or (in each case) any political subdivision or taxing authority thereof or
therein. If any such withholding is so required, the Borrower or relevant
Guarantor shall make the withholding, pay the amount withheld to the
appropriate governmental authority before penalties attach thereto or
interest accrues thereon and forthwith pay such additional amount as may be
necessary to ensure that the net amount actually received by each Bank and
the Administrative Agent free and clear of such taxes (including such taxes
on such additional amount) is equal to the amount which that Bank or the
Administrative Agent (as the case may be) would have received had such
withholding not been made. If the Administrative Agent or any Bank pays
any amount in respect of any such taxes, penalties or interest the Borrower
shall reimburse the Administrative Agent or that Bank for that payment on
demand in the currency in which such payment was made. If the Borrower or
any Guarantor pays any such taxes, penalties or interest, it shall deliver
official tax receipts evidencing that payment or certified copies thereof
to the Bank or Administrative Agent on whose account such withholding was
made (with a copy to the Administrative Agent if not the recipient of the
original) on or before the thirtieth day after payment. If any Bank or the
Administrative Agent determines it has received or been granted a credit
against or relief or remission for, or repayment of, any taxes paid or
payable by it because of any taxes, penalties or interest paid by the
Borrower or any Guarantor and evidenced by such a tax receipt, such Bank or
Administrative Agent shall, to the extent it can do so without prejudice to
the retention of the amount of such credit, relief, remission or repayment,
pay to the Borrower or such Guarantor as applicable, such amount as such
Bank or Administrative Agent determines is attributable to such deduction
or withholding and which will leave such Bank or Administrative Agent
(after such payment) in no better or worse position than it would have been
in if the Borrower had not been required to make such deduction or
withholding. Nothing in this Agreement shall interfere with the right of
each Bank and the Administrative Agent to arrange its tax affairs in
whatever manner it thinks fit nor oblige any Bank or the Administrative
Agent to disclose any information relating to its tax affairs or any
computations in connection with such taxes.
42
SECTION 12.2. NO WAIVER OF RIGHTS. No delay or failure on the part
of the Administrative Agent or any Bank or on the part of the holder or
holders of any of the Obligations in the exercise of any power or right
under any Credit Document shall operate as a waiver thereof, nor as an
acquiescence in any default, nor shall any single or partial exercise
thereof preclude any other or further exercise of any other power or right.
The rights and remedies hereunder of the Administrative Agent, the Banks
and the holder or holders of any of the Obligations are cumulative to, and
not exclusive of, any rights or remedies which any of them would otherwise
have.
SECTION 12.3. NON-BUSINESS DAY. If any payment of principal or
interest on any Loan or of any other Obligation shall fall due on a day
which is not a Business Day, interest or fees (as applicable) at the rate,
if any, such Loan or other Obligation bears for the period prior to
maturity shall continue to accrue on such Obligation from the stated due
date thereof to but not including the next succeeding Business Day, on
which the same shall be payable.
SECTION 12.4. DOCUMENTARY TAXES. The Borrower agrees that it will
pay any documentary, stamp or similar taxes payable in respect to any
Credit Document, including interest and penalties, in the event any such
taxes are assessed, irrespective of when such assessment is made and
whether or not any credit is then in use or available hereunder.
SECTION 12.5. SURVIVAL OF REPRESENTATIONS. All representations and
warranties made herein or in certificates given pursuant hereto shall
survive the execution and delivery of this Agreement and the other Credit
Documents, and shall continue in full force and effect with respect to the
date as of which they were made as long as any credit is in use or
available hereunder.
SECTION 12.6. SURVIVAL OF INDEMNITIES. All indemnities and all
other provisions relative to reimbursement to the Banks of amounts
sufficient to protect the yield of the Banks with respect to the Loans,
including, but not limited to, Section 1.10, Section 9.3 and Section 12.15
hereof, shall survive the termination of this Agreement and the other
Credit Documents and the payment of the Loans and all other Obligations.
SECTION 12.7. SHARING OF SET-OFF. Each Bank agrees with each other
Bank a party hereto that if such Bank shall receive and retain any payment,
whether by set-off or application of deposit balances or otherwise
("Set-off"), on any of the Loans in excess of its ratable share of payments
on all such obligations then outstanding to the Banks, then such Bank shall
purchase for cash at face value, but without recourse, ratably from each of
the other Banks such amount of the Loans held by each such other Banks (or
interest therein) as shall be necessary to cause such Bank to share such
excess payment ratably with all the other Banks; PROVIDED, HOWEVER, that if
any such purchase is made by any Bank, and if such excess payment or part
thereof is thereafter recovered from such purchasing Bank, the related
purchases from the other Banks shall be rescinded ratably and the purchase
price restored as to the portion of such excess payment so recovered, but
without interest.
SECTION 12.8. NOTICES. Except as otherwise specified herein, all
notices under the Credit Documents shall be in writing (including telecopy
or other electronic communication) and shall be given to a party hereunder
at its address or telecopier number set forth below or such other address
or telecopier number as such party may hereafter specify by notice to the
Administrative Agent and the Borrower, given by courier, by United States
certified or registered mail, or by other telecommunication device capable
of creating a written record of such notice and its receipt. Notices under
43
the Credit Documents to the Banks and the Administrative Agent shall be
addressed to their respective addresses, telecopier or telephone numbers
set forth in its Administrative Questionnaire, and to the Borrower and the
Guarantors to:
Xxxxx Xxxx LaSalle Finance X.X.
Xxxxxxxxxxxxx Xxxxxx
Xxxxxxxxxxxxxx 0000
1077 ZX Amsterdam
Attention: Xxxx Xxxxxxxxx
Telecopy: 00 00 000 00 00
Telephone: 00 00 000 00 00
with a copy to:
Xxxxx Xxxx LaSalle Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Global Treasurer
Telecopy: 000-000-0000
Telephone: 000-000-0000
with a copy of notices of Defaults
and Events of Default to:
Xxxxx Xxxx LaSalle Finance B.V.
c/o Jones Lang LaSalle Incorporated
000 Xxxx Xxxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Global General Counsel
Telecopy: 000-000-0000
Telephone: 000-000-0000
Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the
telecopier number specified in this Section 12.8 or on the Administrative
Questionnaire and a confirmation of receipt of such telecopy has been
received by the sender, (ii) if given by courier, when delivered, (iii) if
given by mail, three business days after such communication is deposited in
the mail, registered with return receipt requested, addressed as aforesaid
or (iv) if given by any other means, when delivered at the addresses
specified in this Section 12.8 or on the Administrative Questionnaire;
PROVIDED THAT any notice given pursuant to Section 1 hereof shall be
effective only upon receipt.
SECTION 12.9. COUNTERPARTS. This Agreement may be executed in any
number of counterpart signature pages, and by the different parties on
different counterparts, each of which when executed shall be deemed an
original but all such counterparts taken together shall constitute one and
the same instrument.
SECTION 12.10. SUCCESSORS AND ASSIGNS. This Agreement shall be
binding upon the Borrower and the Guarantors and their successors and
assigns, and shall inure to the benefit of the Administrative Agent and
each of the Banks and the benefit of their respective successors and
assigns, including any subsequent holder of any Obligation. The Borrower
and the Guarantors may not assign any of their rights or obligations under
any Credit Document without the written consent of all of the Banks.
44
SECTION 12.11. PARTICIPANTS. Each Bank shall have the right at its
own cost to grant participations (to be evidenced by one or more agreements
or certificates of participation) in the Loans made and/or Commitments held
by such Bank at any time and from time to time to one or more other
Persons; PROVIDED THAT no such participation shall relieve any Bank of any
of its obligations under this Agreement, and, PROVIDED, FURTHER that no
such participant shall have any rights under this Agreement except as
provided in this Section 12.11, and the Administrative Agent shall have no
obligation or responsibility to such participant. Any agreement pursuant
to which such participation is granted shall provide that the granting
Bank shall retain the sole right and responsibility to enforce the
obligations of the Borrower and Guarantors under this Agreement and the
other Credit Documents including, without limitation, the right to approve
any amendment, modification or waiver of any provision of the Credit
Documents, except that such agreement may provide that such Bank will not
agree to any modification, amendment or waiver of the Credit Documents
described in clauses (i) and (ii) of Section 12.13 hereof. Any party to
which such a participation has been granted shall have the benefits of
Section 1.10 and Section 9.3 hereof.
SECTION 12.12. ASSIGNMENTS.
(a) Any Bank may at any time assign to one or more Eligible
Assignees all or a portion of such Bank's rights and obligations under this
Agreement (including all or a portion of its Commitment and the Loans at
the time owing to it); PROVIDED THAT any such assignment shall be subject
to the following conditions:
(i) MINIMUM AMOUNTS. (A) In the case of an assignment of the
entire remaining amount of the assigning Bank's Loans at the time
owing to it or in the case of an assignment to a Bank, an Affiliate
of a Bank or an Approved Fund, the amount assigned will be at least
_50,000.00 or the equivalent in U.S. Dollars; and (B) in any case not
described in subsection (a)(i)(A) of this Section, the aggregate
principal outstanding balance of the Loans of the assigning Bank
subject to each such assignment (determined as of the date the
Assignment and Acceptance with respect to such assignment is
delivered to the Administrative Agent or, if "Effective Date" is
specified in the Assignment and Acceptance, as of the Effective Date)
shall not be less than $1,000,000 unless each of the Administrative
Agent and, so long as no Event of Default has occurred and is
continuing, the Borrower otherwise consents (each such consent not to
be unreasonably withheld or delayed);
(ii) PROPORTIONATE AMOUNTS. Each partial assignment shall be
made as an assignment of a proportionate part of all the assigning
Bank's rights and obligations under this Agreement with respect to
the Loan assigned.
(iii) REQUIRED CONSENTS. No consent shall be required for any
assignment except to the extent required by Section 12.12(a)(i)(B)
and, in addition:
(a) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed and if it is delayed more than
five (5) Business Days it is deemed to be given) shall be
required unless (x) an Event of Default has occurred and is
continuing at the time of such assignment or (y) such
assignment is to a Bank, an Affiliate of a Bank or an Approved
Fund;
(b) the consent of the Administrative Agent (such
consent not to be unreasonably withheld or delayed and if it is
delayed more than five (5) Business Days it is deemed to be
given) shall be required for assignments if such assignment is
to a Person that is not a Bank, an Affiliate of such Bank or an
Approved Fund with respect to such Bank.
45
(iv) ASSIGNMENT AND ACCEPTANCE. The parties to each
assignment shall execute and deliver to the Administrative Agent an
Assignment and Acceptance, together with a processing and recordation
fee of $3,500, and the assignee, if it is not a Bank, shall deliver
to the Administrative Agent an Administrative Questionnaire.
(v) NO ASSIGNMENT TO BORROWER OR PARENT. No such assignment
shall be made to the Parent or any of its Affiliates or Subsidiaries.
(vi) NO ASSIGNMENT TO NATURAL PERSONS. No such assignment
shall be made to a natural person.
(vii) No such assignment shall result in a reduction in the
total Commitments.
Subject to acceptance and recording thereof by the Administrative
Agent pursuant to Section 12.12(b) hereof, from and after the effective
date specified in each Assignment and Acceptance, the assignee thereunder
shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Acceptance, have the rights and obligations
of a Bank under this Agreement, and the assigning Bank thereunder shall, to
the extent of the interest assigned by such Assignment and Acceptance, be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the assigning Bank's rights and
obligations under this Agreement, such Bank shall cease to be a party
hereto) but shall continue to be entitled to the benefits of Sections 12.6
and 12.15 with respect to facts and circumstances occurring prior to the
effective date of such assignment. Any assignment or transfer by a Bank of
rights or obligations under this Agreement that does not comply with this
Section shall be treated for purposes of this Agreement as a sale by such
Bank of a participation in such rights and obligations in accordance with
Section 12.11 hereof.
(b) REGISTER. The Administrative Agent, acting solely for this
purpose as an agent of the Borrower, shall maintain at one of its offices
in Chicago, Illinois, a copy of each Assignment and Acceptance delivered to
it and a register for the recordation of the names and addresses of the
Banks, and the Commitments of, and principal amounts of the Loans owing to,
each Bank pursuant to the terms hereof from time to time (the "Register").
The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent, and the Banks may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Bank hereunder
for all purposes of this Agreement, notwithstanding notice to the contrary.
The Register shall be available for inspection by the Borrower and any
Bank, at any reasonable time and from time to time upon reasonable prior
notice.
(c) Any Bank may at any time pledge or grant a security interest in
all or any portion of its rights under this Agreement to secure obligations
of such Bank, including any such pledge or grant to a Federal Reserve Bank,
and this Section shall not apply to any such pledge or grant of a security
interest; PROVIDED that no such pledge or grant of a security interest
shall release a Bank from any of its obligations hereunder or substitute
any such pledgee or secured party for such Bank as a party hereto; PROVIDED
FURTHER, HOWEVER, the right of any such pledgee or grantee (other than any
Federal Reserve Bank) to further transfer all or any portion of the rights
pledged or granted to it, whether by means of foreclosure or otherwise,
shall be at all times subject to the terms of this Agreement.
46
SECTION 12.13. AMENDMENTS. Any provision of the Credit Documents
may be amended or waived if, but only if, such amendment or waiver is in
writing and is signed by (a) the Borrower, (b) the Required Banks, and
(c) if the rights or duties of the Administrative Agent are affected
thereby, the Administrative Agent; PROVIDED that:
(i) no amendment or waiver pursuant to this Section 12.13
shall (A) increase or extend any Commitment of any Bank without the
consent of such Bank or (B) reduce the amount of or postpone any
fixed date for payment of any principal of or interest on any Loan or
of any fee payable hereunder without the consent of the Bank to which
such payment is owing or which has committed to make such Loan
hereunder (it being understood that the addition of a principal
amortization schedule for any additional Loans advanced pursuant to
Section 1.13 hereof that does not reduce the principal amortization
schedule of payments due to existing Banks shall not be deemed an
amendment hereunder);
(ii) no amendment or waiver pursuant to this Section 12.13
shall, unless signed by each Bank, change any provision of this
Section 12.13, or the definitions of Maturity Date or Required Banks,
or affect the number of Banks required to take any action under the
Credit Documents, or release any Guarantor (other than pursuant to
the terms hereof) from its guaranty of any Obligations; and
(iii) no amendment or waiver to Section 11 hereof shall be made
without the consent of the Guarantor(s) affected thereby.
SECTION 12.14. HEADINGS. Section headings used in this Agreement
are for reference only and shall not affect the construction of this
Agreement.
SECTION 12.15. LEGAL FEES, OTHER COSTS AND INDEMNIFICATION. The
Borrower agrees to pay all reasonable costs and expenses of the
Administrative Agent in connection with the preparation and negotiation of
the Credit Documents, including without limitation, the reasonable fees and
disbursements of Xxxxxxx and Xxxxxx LLP, counsel to the Administrative
Agent, in connection with the preparation and execution of the Credit
Documents, and any amendment, waiver or consent related hereto, whether or
not the transactions contemplated herein are consummated. The Borrower
further agrees to indemnify each Bank, the Administrative Agent, and their
respective directors, officers and employees, against all losses, claims,
damages, penalties, judgments, liabilities and expenses (including, without
limitation, all expenses of litigation or preparation therefor, whether or
not the indemnified Person is a party thereto) which any of them may incur
or reasonably pay arising out of or relating to any Credit Document or any
of the transactions contemplated thereby or the direct or indirect
application or proposed application of the proceeds of any Loan, other than
those which arise from the gross negligence or willful misconduct of the
party claiming indemnification. The Borrower, upon demand by the
Administrative Agent or a Bank at any time, shall reimburse the
Administrative Agent or Bank for any reasonable legal or other expenses
incurred in connection with investigating or defending against any of the
foregoing except if the same is directly due to the gross negligence or
willful misconduct of the party to be indemnified.
SECTION 12.16. SET OFF. In addition to any rights now or hereafter
granted under applicable law and not by way of limitation of any such
rights, upon the occurrence and during the continuance of any Event of
Default, each Bank and each subsequent holder of any Obligation is hereby
authorized by the Borrower and each Guarantor at any time or from time to
time, without notice to the Borrower, to the Guarantors or to any other
Person, any such notice being hereby expressly waived, to set off and to
appropriate and to apply any and all deposits (general or special,
including, but not limited to, indebtedness evidenced by certificates of
deposit, whether matured or unmatured, but not including trust accounts or
47
other accounts of the Borrower or any Guarantor in a fiduciary capacity,
and in whatever currency denominated) and any other indebtedness at any
time held or owing by that Bank or that subsequent holder to or for the
credit or the account of the Borrower or any Guarantor, whether or not
matured, against and on account of the obligations and liabilities of the
Borrower or any Guarantor to that Bank or that subsequent holder under the
Credit Documents, including, but not limited to, all claims of any nature
or description arising out of or connected with the Credit Documents,
irrespective of whether or not (a) that Bank or that subsequent holder
shall have made any demand hereunder or (b) the principal of or the
interest on the Loans or Notes and other amounts due hereunder shall have
become due and payable pursuant to Section 8 and although said obligations
and liabilities, or any of them, may be contingent or unmatured.
SECTION 12.17. CURRENCY. Each reference in this Agreement to U.S.
Dollars is of the essence. To the fullest extent permitted by law, the
obligation of the Borrower and each Guarantor in respect of any amount due
in U.S. Dollars under this Agreement shall, notwithstanding any payment in
any other currency (whether pursuant to a judgment or otherwise), be
discharged only to the extent of the amount in U.S. Dollars that the Person
entitled to receive such payment may, in accordance with normal banking
procedures, purchase with the sum paid in such other currency (after any
premium and costs of exchange) on the Business Day immediately following
the day on which such Person receives such payment. If the amount of the
U.S. Dollars so purchased is less than the sum originally due to such
Person in U.S. Dollars, the Borrower or relevant Guarantor agrees, as a
separate obligation and notwithstanding any such judgment, to indemnify
such Person against such loss, and if the amount of the specified currency
so purchased exceeds the sum of (a) the amount originally due to the
relevant Person in U.S. Dollars PLUS (b) any amounts shared with other
Banks as a result of allocations of such excess as a disproportionate
payment to such Person under Section 12.7 hereof, such Person agrees to
remit such excess to the Borrower.
SECTION 12.18. ENTIRE AGREEMENT. The Credit Documents constitute
the entire understanding of the parties thereto with respect to the subject
matter thereof and any prior or contemporaneous agreements, whether written
or oral, with respect thereto are superseded thereby.
SECTION 12.19. GOVERNING LAW. This Agreement and the other Credit
Documents, and the rights and duties of the parties hereto, shall be
construed and determined in accordance with the internal laws of the State
of Illinois.
SECTION 12.20. SUBMISSION TO JURISDICTION; WAIVER OF JURY TRIAL.
The Borrower and each Guarantor hereby submits to the nonexclusive
jurisdiction of the United States District Court for the Northern District
of Illinois and of any Illinois State court sitting in the City of Chicago
for purposes of all legal proceedings arising out of or relating to this
Agreement, the other Credit Documents or the transactions contemplated
hereby or thereby. The Borrower and each Guarantor irrevocably waives, to
the fullest extent permitted by law, any objection which it may now or
hereafter have to the laying of the venue of any such proceeding brought in
such a court and any claim that any such proceeding brought in such a court
has been brought in an inconvenient forum. THE BORROWER, EACH GUARANTOR,
THE ADMINISTRATIVE AGENT AND EACH BANK HEREBY IRREVOCABLY WAIVES ANY AND
ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATING TO ANY CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED THEREBY.
The Borrower and each Guarantor (other than the Parent) hereby irrevocably
designates, appoints and empowers the Parent as its designee, appointee and
agent to receive, accept and acknowledge for and on its behalf, and in
respect of its property, service of any and all legal process, summons,
notices and documents which may be served in any such action or proceeding.
If for any reason the Parent shall cease to be available to act as such,
the Borrower and each Guarantor (other than the Parent) agrees to designate
a new designee, appointee and agent in Chicago, Illinois on the terms and
for the purposes of this provision satisfactory to the Administrative Agent
48
under this Agreement. The Borrower and each Guarantor hereby irrevocably
waives any objection to such service of process and further irrevocably
waives and agrees not to plead or claim in any action or proceeding
commenced hereunder or under any other Credit Document that service of
process was in any way invalid or ineffective. Nothing herein shall affect
the right of the Administrative Agent, any Bank or the holder of any
Obligation to serve process in any other manner permitted by law or to
commence legal proceedings or otherwise proceed against the Borrower or any
Guarantor in any other jurisdiction.
SECTION 12.21. LIMITATION OF LIABILITY. In addition to, and not in
limitation of, any limitation on liability provided by law or by any
contract, agreement, instrument or document, the liability of each
Guarantor that is a partnership shall be limited to the assets of such
Guarantor, and no present or future partner of any such Guarantor shall
have any personal liability under this Agreement, except if such partner is
itself a Guarantor or the Borrower.
SECTION 12.22. CONFIDENTIALITY. Each Bank agrees to keep
confidential any confidential written information provided to it by or on
behalf of the Borrower or the Parent pursuant to or in connection with this
Agreement; PROVIDED THAT nothing herein shall prevent any Bank from
disclosing any such information (i) to the Administrative Agent or any
other Bank, (ii) to any participant or assignee or prospective participant
or assignee so long as such participant or assignee or prospective
participant or assignee agrees in writing to the requirement that such
information be kept confidential in the manner contemplated by this
Section 12.22, (iii) to its employees involved in the administration of
this Agreement, directors, attorneys, accountants and other professional
advisors (each of which shall be instructed to hold the same in
confidence), (iv) in response to the request or demand of any governmental
authority, (v) in response to any order of any court or other governmental
authority or as may otherwise be required pursuant to any law, regulation
or legal process, PROVIDED, HOWEVER, that such Bank, to the extent legally
permitted to do so, will use its best efforts to notify the Parent prior to
any disclosure of information contemplated by this subparagraph (v),
(vi) which has been publicly disclosed other than in breach of this
Agreement, or (vii) in connection with the exercise of any remedy hereunder
or under any Credit Document.
SECTION 12.23. SEVERABILITY OF PROVISIONS. Any provision of any
Credit Document which is unenforceable in any jurisdiction shall, as to
such jurisdiction, be ineffective to the extent of such unenforceability
without invalidating the remaining provisions hereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
All rights, remedies and powers provided in this Agreement and the other
Credit Documents may be exercised only to the extent that the exercise
thereof does not violate any applicable mandatory provisions of law, and
all the provisions of this Agreement and other Credit Documents are
intended to be subject to all applicable mandatory provisions of law which
may be controlling and to be limited to the extent necessary so that they
will not render this Agreement or the other Credit Documents invalid or
unenforceable.
SECTION 12.24. EXCESS INTEREST. Notwithstanding any provision to
the contrary contained herein or in any other Credit Document, no such
provision shall require the payment or permit the collection of any amount
of interest in excess of the maximum amount of interest permitted by
applicable law to be charged for the use or detention, or the forbearance
in the collection, of all or any portion of the Loans or other obligations
outstanding under this Agreement or any other Credit Document ("Excess
Interest"). If any Excess Interest is provided for, or is adjudicated to
be provided for, herein or in any other Credit Document, then in such event
49
(a) the provisions of this Section shall govern and control, (b) neither
the Borrower nor any guarantor or endorser shall be obligated to pay any
Excess Interest, (c) any Excess Interest that the Administrative Agent or
any Bank may have received hereunder shall, at the option of the
Administrative Agent, be (i) applied as a credit against the then
outstanding principal amount of Obligations hereunder and accrued and
unpaid interest thereon (not to exceed the maximum amount permitted by
applicable law), (ii) refunded to the Borrower, or (iii) any combination of
the foregoing, (d) the interest rate payable hereunder or under any other
Credit Document shall be automatically subject to reduction to the maximum
lawful contract rate allowed under applicable usury laws (the "Maximum
Rate"), and this Agreement and the other Credit Documents shall be deemed
to have been, and shall be, reformed and modified to reflect such reduction
in the relevant interest rate, and (e) neither the Borrower nor any
guarantor or endorser shall have any action against the Administrative
Agent or any Bank for any damages whatsoever arising out of the payment or
collection of any Excess Interest. Notwithstanding the foregoing, if for
any period of time interest on any of Borrower's Obligations is calculated
at the Maximum Rate rather than the applicable rate under this Agreement,
and thereafter such applicable rate becomes less than the Maximum Rate, the
rate of interest payable on the Borrower's Obligations shall remain at the
Maximum Rate until the Banks have received the amount of interest which
such Banks would have received during such period on the Borrower's
Obligations had the rate of interest not been limited to the Maximum Rate
during such period.
SECTION 12.25. CONSTRUCTION. NOTHING CONTAINED HEREIN SHALL BE
DEEMED OR CONSTRUED TO PERMIT ANY ACT OR OMISSION WHICH IS PROHIBITED BY
THE TERMS OF ANY CREDIT DOCUMENT, THE COVENANTS AND AGREEMENTS CONTAINED
HEREIN BEING IN ADDITION TO AND NOT IN SUBSTITUTION FOR THE COVENANTS AND
AGREEMENTS CONTAINED IN THE CREDIT DOCUMENTS.
SECTION 12.26. BANK'S OBLIGATIONS SEVERAL. The obligations of the
Banks hereunder are several and not joint. Nothing contained in this
Agreement and no action taken by the Banks pursuant hereto shall be deemed
to constitute the Banks a partnership, association, joint venture or other
entity.
SECTION 12.27. USA PATRIOT ACT. Each Bank that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed
into law October 26, 2001)) (the "Act") hereby notifies the Borrower and
each Guarantor that pursuant to the requirements of the Act, it is required
to obtain, verify, and record information that identifies the Borrower and
each Guarantor, which information includes the name and address of the
Borrower and each Guarantor and other information that will allow such Bank
to identify the Borrower and each Guarantor in accordance with the Act.
[Signature Pages to Follow]
50
In Witness Whereof, the parties hereto have caused their duly
authorized officers to execute and deliver this Agreement as of the date
first above written.
XXXXX XXXX LASALLE FINANCE B.V.
By /s/Xxxxxx X. Xxxxxxxxx
------------------------------
Title Managing Director
-----------------------
XXXXX XXXX LASALLE INCORPORATED,
as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Vice President and
Treasurer
-----------------------
XXXXX XXXX LASALLE CO-INVESTMENT, INC.,
as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Vice President and
Treasurer
-----------------------
XXXXX XXXX LASALLE INTERNATIONAL, INC.,
as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Vice President and
Treasurer
-----------------------
LASALLE INVESTMENT MANAGEMENT, INC.,
as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Vice President and
Treasurer
-----------------------
XXXXX LANG LASALLE AMERICAS, INC.,
as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Vice President and
Treasurer
-----------------------
S-1 [Term Loan Agreement]
XXXXX LANG LASALLE LIMITED, as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Attorney-in-Fact
-----------------------
XXXXX LANG LASALLE GmbH, as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Attorney-in-Fact
-----------------------
XXXXX LANG LASALLE NEW ENGLAND, LLC,
as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Vice President and
Treasurer
-----------------------
XXXXX LANG LASALLE TENANT REPRESENTATION,
INC., as Guarantor
By /s/ Xxxxxx X. Xxxxxxxxx
------------------------------
Title Vice President and
Treasurer
-----------------------
S-2 [Term Loan Agreement]
BANK OF MONTREAL, as Administrative Agent
By /s/ Xxxxx X. Xxxxxx
------------------------------
Title Vice President
S-3 [Term Loan Agreement]
BMO CAPITAL MARKETS FINANCING, INC.
By /s/ Xxxxx X. Xxxxxx
------------------------------
Title Vice President
-----------------------
S-4 [Term Loan Agreement]
BANK OF AMERICA, N.A.
By /s/ Xxxx Xxxxxxxxx
------------------------------
Title Senior Vice President
-----------------------
S-5 [Term Loan Agreement]
THE ROYAL BANK OF SCOTLAND PLC
By /s/ Xxxxxxx Xxxxx
------------------------------
Title Relationship Director
-----------------------
S-6 [Term Loan Agreement]
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxx De Vries
------------------------------
Title Senior Vice President
------------------------------
S-7 [Term Loan Agreement]
BARCLAYS BANK PLC
By /s/ Xxxxxxxx X. Xxxx
------------------------------
Title Director
-----------------------
S-8 [Term Loan Agreement]
FIFTH THIRD BANK (CHICAGO),
a Michigan banking corporation
By /s/ Xxxxxx X. Xxxxxxx
------------------------------
Title Vice President
-----------------------
S-9 [Term Loan Agreement]
XXXXX FARGO BANK, N.A.
By /s/ Xxxxxx Cavallari
------------------------------
Title Vice President
-----------------------
S-10 [Term Loan Agreement]
PNC BANK, NATIONAL ASSOCIATION
By /s/ Xxxxx Xxxxx
------------------------------
Title Vice President
-----------------------
S-11 [Term Loan Agreement]
HSBC BANK PLC
By /s/ Xxxxxxx Xxxx
------------------------------
Title Global Relationship
Manager
-----------------------
S-12 [Term Loan Agreement]
THE NORTHERN TRUST COMPANY
By /s/ Xxxxx X. Xxxxxxx
------------------------------
Title Vice President
-----------------------
S-13 [Term Loan Agreement]
EXHIBIT A
NOTE
________________, _____
For Value Received, the undersigned, Xxxxx Lang LaSalle Finance B.V.,
a private company with limited liability organized under the laws of The
Netherlands (the "Borrower"), promises to pay to the order of
________________________ (the "Bank") on the Maturity Date of the
hereinafter defined Term Loan Agreement, at the principal office of Bank of
Montreal, as Administrative Agent, in Chicago, Illinois, in immediately
available funds, the aggregate unpaid principal amount of all Loans made by
the Bank to the Borrower pursuant to the Term Loan Agreement, together with
interest on the principal amount of each Loan from time to time outstanding
hereunder at the rates, and payable in the manner and on the dates,
specified in the Term Loan Agreement.
The Bank shall record on its books or records or on a schedule
attached to this Note, which is a part hereof, each Loan made by it
pursuant to the Term Loan Agreement, together with all payments of
principal and interest and the principal balances from time to time
outstanding hereon, whether the Loan is a Domestic Rate Loan or a
Eurodollar Loan and the interest rate and Interest Period applicable
thereto, PROVIDED that prior to the transfer of this Note all such amounts
shall be recorded on a schedule attached to this Note. The record thereof,
whether shown on such books or records or on a schedule to this Note, shall
be PRIMA FACIE evidence of the same, PROVIDED, HOWEVER, that the failure of
the Bank to record any of the foregoing or any error in any such record
shall not limit or otherwise affect the obligation of the Borrower to repay
all Loans made to it pursuant to the Term Loan Agreement together with
accrued interest thereon.
This Note is one of the Notes referred to in the Term Loan Agreement
dated as of July 2, 2008, among the Borrower, the Guarantors party thereto,
Bank of Montreal, as Administrative Agent, and the Banks party thereto (as
amended from time to time, the "Term Loan Agreement"), and this Note and
the holder hereof are entitled to all the benefits provided for thereby or
referred to therein, to which Term Loan Agreement reference is hereby made
for a statement thereof. All defined terms used in this Note, except terms
otherwise defined herein, shall have the same meaning as in the Term Loan
Agreement. This Note shall be governed by and construed in accordance with
the internal laws of the State of Illinois.
Prepayments may be made hereon and this Note may be declared due
prior to the expressed maturity hereof, all in the events, on the terms and
in the manner as provided for in the Term Loan Agreement.
The Borrower hereby waives demand, presentment, protest or notice of
any kind hereunder.
XXXXX XXXX LASALLE FINANCE B.V.
By
Title
-----------------------
EXHIBIT B
COMPLIANCE CERTIFICATE
This Compliance Certificate is furnished to Bank of Montreal, as
Administrative Agent, pursuant to the Term Loan Agreement (as amended from
time to time, the "Term Loan Agreement") dated as of July 2, 2008, by and
among Xxxxx Lang LaSalle Finance B.V., the Banks signatory thereto and Bank
of Montreal, as Administrative Agent. Unless otherwise defined herein, the
terms used in this Compliance Certificate have the meanings ascribed
thereto in the Term Loan Agreement.
The undersigned hereby certifies that:
1. I am the duly elected or appointed ________________ of
Xxxxx Xxxx LaSalle Incorporated;
2. I have reviewed the terms of the Term Loan Agreement and
I have made, or have caused to be made under my supervision, a
detailed review of the transactions and conditions of Xxxxx Lang
LaSalle Incorporated and its Subsidiaries during the accounting
period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not
disclose, and I have no knowledge of, the existence of any condition
or event which constitutes a Default or an Event of Default during or
at the end of the accounting period covered by the attached financial
statements or as of the date of this Certificate, except as set forth
below; and
4. The representations and warranties contained in Section 5
of the Term Loan Agreement are true and correct in all material
respects as though made on the date hereof (other than those made
solely as of an earlier date, which need only remain true as of such
date), taking into account any amendments to such Section (including
without limitation any amendments to the Schedules referenced
therein) made after the date of the Term Loan Agreement in accordance
with its provisions.
5. Schedule 1 attached hereto sets forth financial data and
computations evidencing compliance with certain covenants of the Term
Loan Agreement, all of which data and computations are true, complete
and correct. All computations are made in accordance with the terms
of the Term Loan Agreement.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Parent has taken, is taking,
or proposes to take with respect to each such condition or event:
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
______________________________________________________________________
The foregoing certifications, together with the computations set
forth in Schedule 1 hereto and the financial statements delivered with this
Certificate in support hereof, are made and delivered this __________ day
of _____________, _____.
----------------------------------------
SCHEDULE I TO THE COMPLIANCE CERTIFICATE
Schedule of Compliance, as of the _________ day of _____________,
_____, with the Sections of the Agreement set forth below:
1. SECTION 7.14(k) (Investments)
A. Investments acquired since the Effective Date $____________
Name Amount
---- ------
___________ ___________
___________ ___________
___________ ___________
B. The portion of Investments listed in Section 1A $____________
that have been disposed of
Name Amount
---- ------
___________ ___________
___________ ___________
___________ ___________
C. Line 1A minus Line 1B $____________
(must not exceed $300,000,000)
D. The Borrower is in compliance Yes/No
2. SECTION 7.15 (Consolidated Net Worth)
A. Total stockholder's equity of the Parent $____________
and its Restricted Subsidiaries
(must be equal to or greater than $___________)
B. The Borrower is in compliance Yes/No
3. SECTION 7.16 (Total Funded Debt to Adjusted EBITDA)
A. Total Funded Debt of the Parent and its $____________
Restricted Subsidiaries
B. Net Income $____________
C. Amounts deducted in arriving at
Net Income in respect of
(i) Interest Expense $____________
(ii) federal, state and local $____________
income taxes
(iii) depreciation of fixed assets $____________
and amortization of intangible
assets
(iv) non-cash contributions and $____________
accruals to deferred profit
sharing or compensation plans
(v) Permitted Adjustments $____________
D. Sum of Lines 3B, 3C(i), 3C(ii), 3C(iii), 3C(iv) $____________
and 3C(v) ("Adjusted EBITDA")
E. Ratio of Line 3A to Line 3D (not to exceed ______ to 1.00
3.25 to 1.00)
F. The Borrower is in compliance Yes/No
4. SECTION 7.17 (Interest Coverage Ratio)
A. Adjusted EBIT (Line 3D above) $____________
B. Rentals $____________
C. Sum of Lines 4A and 4B $____________
D. Cash Interest Expense PLUS Rentals $____________
E. Ratio of Line 4C to Line 4D ______ to 1.00
(must be greater than or
equal to 2.00 to 1.00)
F. The Borrower is in compliance Yes/No
EXHIBIT C
SUBSIDIARY GUARANTEE AGREEMENT
_______________, ____
Bank of Montreal, as Administrative
Agent for the Banks party to the
Term Loan Agreement dated as of
July 2, 2008 among Xxxxx Xxxx
LaSalle Finance B.V., certain
Guarantors, such Banks and such
Administrative Agent (as amended
from time to time, the "Term
Loan Agreement")
Dear Sirs:
Reference is made to the Term Loan Agreement described above. Terms
not defined herein which are defined in the Term Loan Agreement shall have
for the purposes hereof the meaning provided therein.
The undersigned, [name of Subsidiary Guarantor], a [jurisdiction of
incorporation] corporation, hereby elects to be a "Guarantor" for all
purposes of the Term Loan Agreement, effective from the date hereof. The
undersigned confirms that the representations and warranties set forth in
Section 5 of the Term Loan Agreement are true and correct as to the
undersigned as of the date hereof.
Without limiting the generality of the foregoing, the undersigned
hereby agrees to perform all the obligations of a Guarantor under, and to
be bound in all respects by the terms of, the Term Loan Agreement,
including without limitations Section 11 thereof, to the same extent and
with the same force and effect as if the undersigned were a direct
signatory thereto.
This Agreement shall be construed in accordance with and governed by
the internal laws of the State of Illinois.
Very truly yours,
[Name of Subsidiary Guarantor]
By
Name
------------------------
Title
------------------------
EXHIBIT D
ASSIGNMENT AND ACCEPTANCE
Dated _____________, _____
Reference is made to the Term Loan Agreement dated as of July 2, 2008
(the "Term Loan Agreement") among Xxxxx Xxxx LaSalle Finance B.V., the
Guarantors from time to time party thereto, the Banks from time to time
party thereto, and Bank of Montreal, as Administrative Agent for the Banks
(the "Administrative Agent"). Terms defined in the Term Loan Agreement are
used herein with the same meaning.
______________________________________________________ (the
"Assignor") and _________________________ (the "Assignee") agree as
follows:
1. The Assignor hereby sells and assigns to the Assignee,
and the Assignee hereby purchases and assumes from the Assignor, the
amount and specified percentage interest shown on Schedule 1 hereto
of the Assignor's rights and obligations under the Term Loan
Agreement as of the Effective Date (as defined below), including,
without limitation, such percentage interest in the Loans owing to
the Assignor on the Effective Date.
2. The Assignor (i) represents and warrants that it is the
legal and beneficial owner of the interest being assigned by it
hereunder and that such interest is free and clear of any adverse
claim, lien, or encumbrance of any kind; (ii) makes no representation
or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection
with the Term Loan Agreement or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Term Loan
Agreement or any other instrument or document furnished pursuant
thereto; and (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the
Borrower, Parent or any Subsidiary or the performance or observance
by the Borrower, Parent or any Subsidiary of any of their respective
obligations under the Term Loan Agreement or any other instrument or
document furnished pursuant thereto.
3. The Assignee (i) confirms that it has received a copy of
the Term Loan Agreement, together with copies of the most recent
financial statements delivered to the Banks pursuant to Section 7.6
(a) and (b) thereof and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision
to enter into this Assignment and Acceptance; (ii) agrees that it
will, independently and without reliance upon the Administrative
Agent, the Assignor or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under
the Term Loan Agreement; (iii) appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on
its behalf and to exercise such powers under the Term Loan Agreement
and the other Credit Documents as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms
of the Term Loan Agreement are required to be performed by it as a
Bank; and (v) specifies as its lending office (and address for
notices) the offices set forth in its Administrative Questionnaire.
4. As consideration for the assignment and sale contemplated
in Annex 1 hereof, the Assignee shall pay to the Assignor on the
Effective Date in Federal funds the amount agreed upon between them.
Each of the Assignor and the Assignee hereby agrees that if it
receives any amount under the Term Loan Agreement which is for the
account of the other party hereto, it shall receive the same for the
account of such other party to the extent of such other party's
interest therein and shall promptly pay the same to such other party.
5. The effective date for this Assignment and Acceptance
shall be ___________ (the "Effective Date"). Following the execution
of this Assignment and Acceptance, it will be delivered to the
Administrative Agent for acceptance and recording by the
Administrative Agent and, if required, the Borrower.
6. Upon such acceptance and recording, as of the Effective
Date, (i) the Assignee shall be a party to the Term Loan Agreement
and, to the extent provided in this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor
shall, to the extent provided in this Assignment and Acceptance,
relinquish its rights and be released from its obligations under the
Term Loan Agreement.
7. Upon such acceptance and recording, from and after the
Effective Date, the Administrative Agent shall make all payments
under the Term Loan Agreement in respect of the interest assigned
hereby (including, without limitation, all payments of principal and
interest with respect thereto) to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments under the
Term Loan Agreement for periods prior to the Effective Date directly
between themselves.
8. This Assignment and Acceptance shall be governed by, and
construed in accordance with, the laws of the State of Illinois.
[Assignor Bank]
By
Name
--------------------
Title
--------------------
[Assignee Bank]
By
Name
--------------------
Title
--------------------
Accepted and consented this
____ day of _____________.
XXXXX XXXX LASALLE FINANCE B.V.
By
------------------------------
Name
------------------------
Title
------------------------
Accepted and consented to by the Administrative
Agent this ___ day of _____________.
BANK OF MONTREAL, as
Administrative Agent
By
------------------------------
Name
------------------------
Title
------------------------
ANNEX I
TO ASSIGNMENT AND ACCEPTANCE
The assignee hereby purchases and assumes from the assignor the
following interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the effective date.
PERCENTAGE
AGGREGATE LOANS AMOUNT OF ASSIGNED
FOR ALL BANKS LOANS ASSIGNED OF LOANS
--------------- -------------- --------------
$ $ %
-------------- -------------- --------------
EXHIBIT E
TERM LOAN INCREASE REQUEST
To: Bank of Montreal, as Administrative Agent for the Banks parties to
the Term Loan Agreement dated as of July 2, 2008 (as extended,
renewed, amended or restated from time to time, the "Term Loan
Agreement"), among Xxxxx Lang LaSalle Finance B.V., the Guarantors
party thereto, certain Banks which are signatories thereto, and Bank
of Montreal, as Administrative Agent
Ladies and Gentlemen:
The undersigned, Xxxxx Xxxx LaSalle Finance B.V. (the "Borrower")
hereby refers to the Term Loan Agreement and requests that the
Administrative Agent, consent to an increase in the aggregate Loans (the
"Term Loan Increase"), in accordance with Section 1.13 of the Term Loan
Agreement, to be effected by [an increase in the Loan of [name of existing
Bank] [the addition of [name of new Bank] (the "New Bank") as a Bank under
the terms of the Term Loan Agreement]. Capitalized terms used herein
without definition shall have the same meanings herein as such terms have
in the Term Loan Agreement.
After giving effect to such Term Loan Increase, the Loan of the
[Bank] [New Bank] shall be $_____________.
[Include paragraphs 1-3 for a New Bank]
1. The New Bank hereby confirms that it has received a copy of the
Credit Documents and the exhibits related thereto, together with copies of
the documents which were required to be delivered under the Term Loan
Agreement as a condition to the making of the Loans and other extensions of
credit thereunder. The New Bank acknowledges and agrees that it has made
and will continue to make, independently and without reliance upon the
Administrative Agent or any other Bank and based on such documents and
information as it has deemed appropriate, its own credit analysis and
decisions relating to the Term Loan Agreement. The New Bank further
acknowledges and agrees that the Administrative Agent has not made any
representations or warranties about the credit worthiness of the Borrower
or any other party to the Term Loan Agreement or any other Credit Document
or with respect to the legality, validity, sufficiency or enforceability of
the Term Loan Agreement or any other Credit Document or the value of any
security therefor.
2. Except as otherwise provided in the Term Loan Agreement,
effective as of the date of acceptance hereof by the Administrative Agent,
the New Bank (i) shall be deemed automatically to have become a party to
the Term Loan Agreement and have all the rights and obligations of a "Bank"
under the Term Loan Agreement as if it were an original signatory thereto
and (ii) agrees to be bound by the terms and conditions set forth in the
Term Loan Agreement as if it were an original signatory thereto.
3. The New Bank hereby confirms that its administrative details
are set forth in its Administrative Questionnaire.
[4.] The Loans of the [Bank] [New Bank] advanced pursuant to this
Term Loan Increase Request shall amortize in accordance with the terms of
the Term Loan Agreement with the amount of each such principal installment
to equal the amount set forth in Column B below opposite the relevant due
date as set forth in Column A below:
COLUMN A COLUMN B
Payment Date Principal Amount
THIS AGREEMENT SHALL BE DEEMED TO BE A CONTRACTUAL OBLIGATION UNDER,
AND SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF ILLINOIS.
The Term Loan Increase shall be effective when the executed consent
of the Administrative Agent is received or otherwise in accordance with
Section 1.13 of the Term Loan Agreement, but not in any case prior to
___________________, ____. It shall be a condition to the effectiveness of
the Term Loan Increase that all expenses referred to in Section 1.13 of the
Term Loan Agreement shall have been paid.
The Borrower hereby certifies that no Default or Event of Default has
occurred and is continuing.
Please indicate the Administrative Agent's consent to such Term Loan
Increase by signing the enclosed copy of this letter in the space provided
below.
Very truly yours,
XXXXX LANG LASALLE FINANCE B.V.
By
------------------------------
Name:
------------------------
Title:
------------------------
[New or existing Bank Increasing
Commitments]
By
------------------------------
Name:
------------------------
Title:
------------------------
The undersigned hereby consents
on this ___ day of ____________,
______ to the above-requested
Term Loan Increase.
BANK OF MONTREAL,
As Administrative Agent
By
------------------------------
Name
------------------------
Title
------------------------
SCHEDULE 1
COMMITMENTS
NAME OF BANK COMMITMENT
BMO Capital Markets Financing, Inc. $ 3,333,333.33
Bank of America, N.A. $ 3,333,333.33
The Royal Bank of Scotland PLC $ 23,333,333.33
U.S. Bank National Association $ 16,666,666.67
Barclays Bank PLC $ 36,666,666.67
Fifth Third Bank (Chicago) $ 30,000,000.00
Xxxxx Fargo Bank, N.A. $ 26,666,666.67
PNC Bank, National Association $ 3,333,333.33
HSBC Bank PLC $ 10,000,000.00
The Northern Trust Company $ 6,666,666.67
---------------
$150,000,000.00
SCHEDULE 5.2
GUARANTORS
Jurisdiction Percentage
Name of Incorporation Ownership
Xxxxx Lang LaSalle Incorporated Maryland N/A
Xxxxx Xxxx LaSalle Americas, Inc. Maryland 100%
LaSalle Investment Management, Inc. Maryland 100%
Xxxxx Lang LaSalle International, Inc. Delaware 100%
Xxxxx Xxxx LaSalle Co-Investment, Inc. Maryland 100%
Xxxxx Lang LaSalle Limited England 100%
Xxxxx Xxxx LaSalle GmbH Germany 100%
Xxxxx Lang LaSalle New England, LLC Delaware 100%
Xxxxx Xxxx LaSalle Tenant
Representation, Inc. Texas 100%
SCHEDULE 7.14
EXISTING INVESTMENTS
